It appears on the face of the order that the salary of the defendant due from the municipal, corporation is in the hands of the comptroller, and he is required to attend and testify as a third person, relative to the same.
It has been held in this court that such an order should not be granted as the salary of the officer or employe is, until paid over, mingled in the treasury of the corporation with other funds, and not separated and cannot be considered, while in the hands of the comptroller, as the property of the defendant.
This question has been discussed very fully by Hr. justice HoAdam, and I refer the counsel to his well considered opinion.
The motion to vacate the order is granted, but without costs.
The opinion of HoAdam, J., referred to, is as follows: