Opinion
February, 1914.
Present — Ingraham, P.J., McLaughlin, Laughlin, Clarke and Scott, JJ.
This case has been re-examined in the light of the argument made and brief submitted by counsel for the respondent, who was not before the court on the original hearing. The opinion on the original hearing filed on the thirty-first day of December ( 159 App. Div. 738), is in accord with the views of the members of the court who heard the reargument. We deem it necessary, however, to make a few observations in answer to one of the contentions made by counsel for respondent. The application for the order for an execution against wages pursuant to the provisions of section 1391 of the Code of Civil Procedure, did not constitute the institution of a special proceeding as contended. The order was granted pursuant to the authority conferred by the statute; and the only effect of it is that declared by the statute. The Legislature did not vest authority in the court to enforce the execution. The sole remedy for the failure to comply with the execution is the action authorized by the statute to recover the amount which should have been paid to apply on the execution. It follows that the determination of the Appellate Term should be reversed, with costs, and the judgment of the Municipal Court affirmed, with costs.
Determination reversed, with costs, and judgment of Municipal Court affirmed, with costs. Order to be settled on notice.