Opinion
June 27, 1939.
Appeal from the City Court of the City of New York, County of New York.
Herdling Scharf [ Julius Brandes of counsel], for the appellant.
Philip Fliashnick [ Julian Liberman of counsel], for the respondent.
The order directing the issuance of a garnishee execution in favor of plaintiff, judgment creditor, was unauthorized in view of the fact that execution had not been returned unsatisfied at the time of the making of said order, as required by subdivision 1 of section 684 of the Civil Practice Act. The movant, as a junior garnishee lienor, has an interest which entitles him to apply for a vacatur of the order permitting the issuance of a garnishee execution in favor of the respondent. (See Matter of Royal Bank, 140 A.D. 480.) The garnishee execution was properly issued to the city marshal.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
All concur.
Present — FRANKENTHALER, SHIENTAG and NOONAN, JJ.