Opinion
November 4, 1910.
Gates Hamburger, for the appellant.
Andrew J. Ewald, for the respondent.
Present — INGRAHAM, P.J., CLARKE, SCOTT, MILLER and DOWLING, JJ.
This is an appeal from an order denying a motion by the Royal Bank of New York, a judgment creditor of one Simon G. Garrison, an employee of the city of New York, to establish the priority of an execution issued in behalf of said appellant against the wages or salary of said Garrison, over a similar execution issued in behalf of another judgment creditor named Crowell. In effect the motion was to vacate the execution issued in behalf of said Crowell. Both executions must find their justification, if any, in the provisions of section 1391 of the Code of Civil Procedure. The execution in favor of Crowell was issued March 2, 1910, while another similar execution in favor of one M.H. Vogel was outstanding and unsatisfied. For the reasons stated in Bloomingdale v. Richardson ( 140 App. Div. 350), decided herewith, the execution in favor of Crowell was unwarranted and voidable. It is urged that the objection, while it would have been good if taken by the judgment debtor, cannot be availed of by a junior judgment creditor. This contention is untenable. The appellant is interested in collecting its judgment as promptly as possible, for if it be delayed its execution may become valueless. Crowell having undertaken to issue his execution contrary to the provisions of the statute, it cannot be upheld against any one having an interest in attacking it.
The order appealed from must be reversed, with ten dollars costs and disbursements against the respondent Crowell, and the motion granted, with ten dollars costs against said respondent.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.