Opinion
May, 1904.
Kellogg Slosson, for motion.
Ernest Sturm, opposed.
This is a motion to vacate an order directing that an execution issue against the wages and salary of the judgment debtor now due or which may hereafter become due and owing to him from the city of New York. The affidavit upon which the order was granted shows that the judgment debtor is employed by the city of New York in the bureau of sewers in the borough of The Bronx as a draughtsman at a salary of $150 per month. The order purports to have been made pursuant to section 1391 of the Code of Civil Procedure. The order directs the sheriff of New York county to satisfy the judgment, with interest and the expenses of the execution, out of the wages or salary of the judgment debtor by collecting from the city of New York the sum of fifteen dollars per month, that sum being ten per centum of the wages or salary of said judgment debtor, in each and every month, and provides that said execution shall be a continuing levy on the wages and salary of the said judgment debtor until the said judgment, with interest and expenses of execution are fully satisfied. The order further directs the city of New York to pay over to the sheriff the said sum of fifteen dollars per month.
Section 1391 of the Code of Civil Procedure was amended by the Laws of 1903, chapter 461, so as to provide that "Where a judgment has been recovered wholly for necessaries sold, or work performed in a family as a domestic, or for services rendered for salary owing to an employee of the judgment debtor, and where an execution issued upon said judgment has been returned wholly or partly unsatisfied and where any wages, debts, earnings, salary, income from trust funds or profits are due and owing to the judgment debtor or shall thereafter become due and owing to him, to an amount exceeding twenty dollars per week and where no execution issued as hereafter provided in this section is unsatisfied and outstanding against said judgment debtor, the judgment creditor may apply to the court in which said judgment was recovered and upon satisfactory proof of such facts by affidavit or otherwise, the court, if a court not of record, a judge or justice thereof, must issue, or if a court of record, a judge or a justice, must grant an order directing that an execution issue against the wages, debt, earnings, salary, income from trust funds or profits of said judgment debtor, and on presentation of such execution by the officer to whom delivered for collection to the person or persons from whom such wages, debts, earnings, salary, income from trust funds or profits are due and owing, or may thereafter become due and owing, to the judgment debtor, said execution shall become a lien and a continuing levy upon the wages, earnings, debts, salary, income from trust funds or profits due or to become due to said judgment debtor to the amount specified therein which shall not exceed ten per centum thereof and said levy shall be a continuing levy until said execution and the expenses thereof are fully satisfied and paid or until modified as hereinafter provided. It shall be the duty of any person or corporation to whom said execution shall be presented, and who shall at such time be indebted to the judgment debtor named in such execution, or who shall become indebted to such judgment debtor in the future, and while said execution shall remain a lien upon said indebtedness to pay over to the officer presenting the same, such amount of such indebtedness as such execution shall prescribe until such execution shall be wholly satisfied and such payment shall be a bar to any action therefor by any such judgment debtor. If such person or corporation to whom said execution shall be presented shall fail, or refuse to pay over to said officer presenting said execution, the percentage of said indebtedness, he shall be liable to an action therefor by the judgment creditor named in such execution, and the amount so recovered by such judgment creditor shall be applied toward the payment of said execution," etc.
This section makes it the duty of "any person or corporation" to whom such execution shall be presented or from whom such an indebtedness is due or to become due to pay the prescribed percentage of such indebtedness to the sheriff to be applied in satisfaction of the debt due from the judgment debtor. The question presented for determination upon this motion is whether a municipal corporation such as the city of New York is within the contemplation of this section of the Code of Civil Procedure.
In attempting to discover the intention of the Legislature in the enactment of this provision, it must be construed with due regard to the principles of public policy which the courts have declared to be applicable to the salary or wages due from a municipal corporation to a public officer or employee, and the extent to which the action of such a municipal corporation should be controlled for the purpose of enabling a judgment creditor to satisfy his private debts.
The law in respect to these principles has frequently been defined and is well settled.
It is now settled beyond dispute that the wages or salary of a public officer or employee, although due, cannot be reached before it comes into his possession by a third party order in supplementary proceedings on behalf of the judgment creditor. This question has been so fully discussed by Mr. Justice McAdam in Remmey v. Gedney, 57 How. Pr. 217, and has been so often followed with approval that further comment upon it is unnecessary. The reason for the rule was briefly summarized in Bliss v. Lawrence, 58 N.Y. 442, 451, where the court said that "The substance of it all is, the necessity of maintaining the efficiency of the public service by seeing to it that public salaries really go to those who perform the public service." The rule has been applied in a great variety of cases. The same principle was applied by the United States Supreme Court in the case of certain seamen of the frigate Constitution, entitled to money in the hands of a purser (Buchanan v. Alexander, 4 How. [U.S.] 20), and has been held applicable to moneys in the control of clerks of courts (Drane v. McGavock, 7 Humphr. 132), and to money due a common-school teacher in the hands of the school commissioner (Tracy Loyd v. Hornbuckle, 8 Bush, 336), and to the salary of a police officer in the hands of his captain (Gray v. Ashley, 24 Misc. 396.)
There are many reasons why the officers of the city government should not have their actions controlled for the sake merely of allowing a judgment creditor to satisfy his claims against a debtor. In such a case public interests intervene and are paramount to the private interests of the creditor. If the section under consideration is applicable to municipal corporations the officers of the city may be directed to pay the salary of an employee to the sheriff and must appear in response to orders which may be served upon them for this purpose, and if they pay over such money improperly the municipal corporation would be subject to litigation by the debtor and if they do not pay the sheriff as prescribed in the order the municipal corporation would be liable to the judgment creditor for the amount of the debt due from the city. Such a law wo