Siegel v. Gussow

179 A.D. 532, 166 N.Y.S. 117, 1917 N.Y. App. Div. LEXIS 7325

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1917
• Status: Published

Opinion

Laughlin, J.:

The ground upon which the executions were set aside is that notice .of the applications therefor should have been given to the employers of the judgment debtor. The application upon which the executions were set aside was made, not by either of the employers of the judgment debtor, but by Siegel, likewise a judgment creditor of Gussow, upon whose application a like order for an. execution had been granted on the 12th of July, 1916, subsequent to the orders authorizing the executions in favor of the plaintiff. In Neuman v. Mortimer (98 App. Div. 64) this court expressed the opinion that as a question of practice all applications' for executions under section 1391 of the Code of Civil Procedure .should be made upon notice upon the. ground that the judgment debtor was entitled to be heard; and in Sloane v. Tiffany (103 App. Div. 540) and King v. Irving (Id. 420) we held that where the application is for an execution to reach trust "funds the trustee also was entitled to notice. After the decision in Neuman v. Mortimer (supra) and about the time the decisions in the other two cases were announced, but evidently before they became known, the Legislature by chapter 175 of the Laws of 1905, which was enacted on the 11th day of April, 1905, and took effect immediately, amended said section 1391 by providing that applications for executions thereunder might be made without notice to the judgment debtor.

* It may be that the Legislature intended by that amendment to authorize ex parte applications, but it did not so specifically provide. The validity of that amendment was sustained by this court in Pistchal v. Durant (168 App. Div. 101), but it was there held that it did not dispense with notice to a trustee. An appeal from that decision was dismissed (216 N. Y. 644).

There is a distinction between an execution issued against a trust fund and one issued against salary or wages. The trustee may owe a duty to the creator of the trust and many trusts are created with a view to the protection of the cestui que trust. It is quite immaterial to an employer to whom he pays the salary or wages due to an employee if, as under said section, the payment discharges the indebtedness, and since the employee himself is not entitled to notice it would seem to follow that the Legislature did not intend to require notice to the employer and that there is no necessity for such notice. The issuance of the execution creates no liability against the employer and the statute prescribes his duty with respect to the subsequent payment of' wages or salary due to the judgment debtor.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Clarke, P. J., Scott, Davis and Shearn, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

See, also, Laws of 1908, chap. 148; Laws of 1911, chaps. 489, 532; Laws of 1914, chap. 352.— [Rep.