Mergenthaler Linotype Co. v. Nalley

246 A.D. 882 | N.Y. App. Div. | 1936

One Paul Swayze obtained a judgment against this defendant on February 13, 1934, and duly obtained and served garnishee process on defendant’s employer on February 17, 1934; and thereunder ten per cent of the moneys and wages due the defendant were paid to the judgment creditor. The plaintiff duly obtained two judgments against the defendants, and on August 28, 1934, obtained and served garnishee process on defendant’s same employer. The defendant moved at Special Term to vacate the garnishee process of this plaintiff, and to direct the payment to the defendant of the moneys and wages which the employer withheld from the defendant pursuant to plaintiff’s garnishee. The motion was granted on January 25, 1935. Upon a reargument of the motion the Special Term amended the order of January 25, 1935, and directed that it be modified, but did not direct the particulars of modification, and granted a stay “ pending the termination of a prior garnishee,” and again directed the payment to the defendant of all moneys retained by the employer under plaintiff’s process. It appears from the argument that the full amount of the Swayze judgment has been paid. Plaintiff was not entitled to payments on its judgment under garnishee process while a prior garnishee was being executed; but became entitled to such payments at the expiration of that time. The substantive portion of the order appealed from, made May 1, 1935, is modified to read as follows: “ Ordered, that the two orders made on the 28th day of August, 1934, each directing the issue of garnishee process against moneys and wages due and to grow due defendant from the city of Rensselaer, be and the same hereby are modified by striking out from the 14th line of the substantive portion of each thereof, as they appear in the record on appeal herein, the words ‘ now due, and ten per cent of those; ’ and by adding at the end of said substantive portion of each of said orders the following words: ‘ provided, however, that such 10% shall be payable only on one of said judgments at a time in the order of docketing, or in such order as the court shall direct; and no payment shall be payable on either of said judgments until the judgment for 8348.30 in favor of Paul Swayze against said defendant shall be paid in full pursuant to the garnishee process issued and executed thereunder. And the garnishee process upon said two judgments, issued under said orders of August 28, 1934, be and the same are hereby amended accordingly. And the city treasurer of the city of Rensselaer is hereby authorized to pay to the defendant all moneys and wages held by it pursuant to the garnishee process issued herein prior and up to the time of payment in full of said Swayze judgment. This order is granted and made nunc pro tunc, as of May 1, 1935.’ ” As so modified the order is affirmed, with ten dollars costs, and disbursements to the plaintiff. Hill, P. J., Rhodes, McNamee, Crapser and Heffernan, JJ., concur.