268 A.D. 814 | N.Y. App. Div. | 1944
Order reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Memorandum: The trustees were aggrieved parties within the definition contained in subdivision 1 of section 557 of the Civil Practice Act. As such they can maintain this appeal. (In re Whitney, 113 F. 2d 426, 428.) Sections 684 and 793 of the Civil Practice Act must be read and construed together. The same judgment creditor cannot have relief under both sections. Inasmuch as the respondent procured a judgment directing that all income in excess of $12,000 per year be paid over to him as trustee in bankruptcy, he cannot have a garnishee execution at the same time. The judgment was equivalent to an order under section 793 of the Civil Practice Act. (McDonnell v. McDonnell, 281 N. Y. 480, 482.) Furthermore the garnishee execution would not issue against the $12,000 per annum reserved to Brown in the aforementioned judgment. (Matter of Kaplan v. Peyser, 273 N. Y. 147; Sehenck v. Barnes, 156 N. Y. 316.) All concur. (The order directs the issuing of an execution against the income of Julian S. Brown from a trust under the will of Mary L. Brown, deceased.) Present — Cunningham, P. J., Taylor, Dowling, Harris and McCurn, JJ.