143 N.Y.S. 1025 | N.Y. App. Div. | 1913
Applicant Pratt sued one Lenahan in the City Court and obtained a judgment therein in his favor for $350. The judgment roll was duly filed, execution thereon was issued to the sheriff and returned wholly unsatisfied. Thereafter an order was obtained under section 1391 of the Code of Civil Procedure
Section 1391 provides that “If such person or corporation, municipal or otherwise, to whom said execution shall be presented, shall fail or refuse to pay over to said officer presenting said execution, the percentage of said indebtedness, he shall be liable to an action therefor by the judgment creditor named in such execution.”
The statute itself having provided the remedy by action against the person or corporation refusing to pay upon presentation of such an execution, such remedy is exclusive. There is no authority to proceed by way of summary order.
The order of the Appellate Term is, therefore, reversed and the order of the City Court affirmed, with ten dollars costs and disbursements in this court and the Appellate Term.
Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.
Order of Appellate Term reversed and order of City Court affirmed, with ten dollars costs and disbursements in this court and at the Appellate Term. Order to be settled on notice.