Schwartz Tire Corp. v. Gershon

160 Misc. 439, 290 N.Y.S. 63, 1936 N.Y. Misc. LEXIS 1269

Opinion

Evans, J.

This is an application to compel the debtor to pay a judgment, in installments, under section 793 of the Civil Practice Act. The only basis for the order sought is that, at Special Term, after motion made and granted, on default, the debtor’s salary was fixed at sixty dollars weekly. For that reason, solely, the creditor asks the court to order the debtor to pay six dollars weekly. The order fixing the salary at sixty dollars was made on representation to the court that the debtor was president of a corporation, for which he performed services presumably of the value of sixty dollars weekly. The moving papers say that the debtor was examined in supplementary proceedings, but nothing is indicated as to the facts elicited, during the examination, as to the debtor’s income, necessary expenditures or obligations. I am unable to make an order under section 793 of the Civil Practice Act, solely upon the ground that another justice granted a motion to fix the judgment debtor’s salary.

The fixation of a salary will permit the issuance of a garnishee order and, if the garnishee order be not honored, the creditor may bring suit to determine and collect the reasonable weekly salary against the employer. (Diamond v. Schulte Bakers, Inc., 136 Misc. 195.) Such a fixation of salary obviously is for the purpose of proceeding by way of garnishee. An order under section 793 of the Civil Practice Act must be made upon different considerations. The court is obliged to inquire not only as to the income of the debtor, but as to his necessary expenditures and obligations. There is not a sufficient showing in the moving papers to warrant the courf in making an order. Motion denied with leave to renew upon proper papers.