
    Peter Neuman and Adam Neuman, Respondents, v. John Mortimer, Appellant.
    
      Execution against wages — a judgment on a judgment is not for necessaries — averment as to any other execution not returned — a judgment in an action to sequestrate the income of a trust fund is res ad judicata — notice to the judgment debtor.
    
    In order to warrant an order against a judgment debtor, under section 1391 of the Code of Civil Procedure, that “an execution issue against the wages, debt, earnings, salary, income from trust funds or profits of said judgment debtors,” it must appear that the judgment was recovered wholly for necessaries sold and that no similar execution is outstanding.
    
      A judgment, rendered in an action brought upon another judgment, is not a judgment recovered wholly for necessaries sold, notwithstanding that the judgment upon which the action was brought was itself wholly for necessaries sold.
    An averment that “there is now no execution on this judgment now outstanding or not returned ” does not satisfy the requirements of the section, as it does not follow that other executions on other judgments are not outstanding and unsatisfied.
    An adjudication, in a prior action brought by a judgment creditor upon his judgment, to have applied to the satisfaction thereof the surplus income of a trust fund, to which income the judgment debtor was entitled, that such income was no more than sufficient for the support of himself and family, is conclusive upon the judgment creditor in a proceeding to reach such income under this section.
    An application for the issuance of an execution under section 1391 of the Code of Civil Procedure should be made upon notice to the judgment debtor.
    Appeal by the defendant, John Mortimer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of September, 1904, denying the defendant’s motion to vacate an order theretofore entered herein directing the issuance of an execution.
    
      John Ewen, for the appellant.
    
      William D. Tyndall, for the respondents.
   O’Brien, J.:

The plaintiffs brought an action against the defendant in the Supreme Court of New Jersey which resulted in April, 1896, in a judgment for the sum of §323.95 damages and costs. Thereafter in the Supreme Court of this State in the county of Queens the plaintiffs brought an action on the New Jersey judgment and recovered a judgment for $387.35. Prior to the recovery of this j udgment the defendant’s mother by will created a trust in his favor and appointed a trustee to pay over to him income from the principal of the trust fund during his lifetime and, upon his death, to his lawful issue, with the right, however, to the defendant to dispose of the same by an instrument in the nature of a will.

After the recovery of the judgment .in Queens county an action was brought by the plaintiffs to have declared and applied upon the judgment a surplus from the income of this trust. It having been found upon the trial that the income was no more than sufficient for the support of the defendant and his family, the complaint in that action was dismissed.

In September, 1903, the plaintiffs applied ex parte for an order under the amendment of section 1391 of the Code of Civil Procedure which went into effect on September 1, 1903, and which provides:

“Where a judgment has been recovered wholly for necessaries sold * * * and where an execution issued upon said judgment has been returned wholly or partly unsatisfied, and where any wages, debts, earnings, salary, income from trust funds or, profits are due and owing to the judgment debtor, or shall thereafter become due and owing to him to an amount exceeding twenty dollars per week, and where no execution issued as hereafter provided in this section is unsatisfied and outstanding against said judgment debtor, the judgment creditor may apply to the court in which said judgment was recovered and upon satisfactory proof of such facts by affidavit or otherwise, the court * * . * must grant an order directing that an execution issue against the wages, debt, earnings, salary, income from trust funds or profits of said judgment debtor * *

An order was thereupon entered directing “ that an execution issue * * * against the wages, debt, earnings, salary, income from trust funds or profits of said judgment debtor under and pursuant to the statute.” A motion was made to vacate this order upon the papers upon which it was granted, which motion was denied, and from the order entered upon such denial the defendant appeals.

We think that the ex parte order under section 1391 of the Code of Civil Procedure, for various reasons appearing upon the face of the papers, should not have been granted.

As a basis for the right to issue an execution under this section of the Code of Civil Procedure, two essential facts should be made to appear, one that the judgment was recovered wholly for necessaries sold and the other that no execution issued pursuant to said section was outstanding. The judgment here sought to be enforced was not obtained wholly for necessaries, being one obtained in an action brought on a judgment of the Supreme Court of New Jersey. Assuming that the original cause of action in New Jersey was wholly for necessaries, the action here was on a judgment and not on the original cause of action.

The second essential fact that should appear to give a judgment creditor the right under this section of the Code of Civil Procedure to such an order is that no execution issued pursuant to said section remains outstanding against the j udgment debtor. Here the affidavit states that there is now no execution on this judgment now outstanding or not returned.” This averment may be true, but it does not follow that other executions on other judgments are not outstanding and unsatisfied. Nor do we find any answer to the suggestion that the judgment in the action brought to have declared a surplus payable out of the income of the judgment debtor was an adjudication that no portion of the income from this fund be diverted from the beneficiary; and, as there is no claim that there was any other fund that could be reached, that judgment was, as between the parties, upon this subject conclusive.

As a question of practice, all applications under section 1391 of the Code of Civil Procedure must be upon notice. The debtor has a right to be heard before an execution under this provision of the Code is allowed.

For the reasons given we think that the motion to vacate the order should have been granted. The order appealed from is accordingly reversed, with ten dollars costs and disbursements, and the motion to vacate the order directing the execution to issue is granted, without costs.

Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.  