National City Bank v. Clarke

246 A.D. 636

Opinion

In supplementary proceedings for the collection of a judgment against the respondent, the appellant moved for an order under section 793 of the Civil Practice Act requiring the respondent to make installment payments on account of the judgment, the amount of such installments to be determined “ after due regard for the reasonable requirements of the judgment debtor and his family, if dependent upon him.” Order denying the motion reversed on the law and the facts, with ten dollars costs and disbursements, and the matter sent to an official referee to take testimony and proofs as to the resources, property and income of the judgment debtor and of his reasonable requirements for the support of himself and his family, “ if dependent upon him.” The official referee shall report, with his opinion thereon, to the Special Term to which this proceeding is remitted, and on the coming in of the report the Special Term shall make such order, under section 793 of the Civil Practice Act, as shall be proper. In our opinion, the appellant’s remedy under section 793 of the Civil Practice Act should not be refused or delayed by reason of the pending appeal to the Court of Appeals in the absence of an undertaking by the respondent to stay execution. The appellant is entitled to avail itself of every existing remedy for the enforcement of its judgment, unless stayed by a suitable undertaking. Lazansky, P. J., Hagarty, Tompkins, Dams and Johnston, JJ., concur.