Citation Numbers: 45 Misc. 2d 882
Judges: Saypol
Filed Date: 3/31/1965
Status: Precedential
Modified Date: 2/5/2022
Application for a final judgment directing respondent employer to pay over to the Sheriff the entire salary of the judgment debtor in her possession is denied for insufficiency and without prejudice. It appears that the judgment creditor has proceeded both by way of garnishment and income execution, though the latter remedy is said not to affect the same sum of money affected by the garnishee restraint. Be that as it may, the debtor is mistaken in his reliance in McDonnell v. McDonnell (281 N. Y. 480), for the proposition that these are mutually exclusive remedies, in view of the legislative history of the applicable statutory provisions (see L. 1941, ch. 694, amdg. Civ. Prac. Act, § 793 to overcome the effects of the McDonnell decision; and Final Report of Advisory Comm., p. A-570 [Advance Draft 1961] and Fifth Preliminary Report by Sen. Finance Comm., p. 619, indicating the drafters ’ intention to carry forward section 793 substantially the same into CPLR 5226).
However, the garnishment sought to be reduced to judgment herein would take the entire salary due and owing to the judg