
    Martin P. Weisel, Appellant, v. Old Dominion Steamship Company, Respondent.
    
      Action to compel payment under an execution by a third, person of the amount of his indebtedness to the judgment debtor — in what court it may be brought—it is not an action to foreclose a lien upon a chattel — a lien defined.
    
    An action brought under section 1391 of the Code of Civil Procedure, as amended by chapter 461 of the Laws of 1903, against a person indebted to a judgment debtor, because of the failure of such person to satisfy an execution issued under the said section to the extent of his obligation to the judgment debtor, is to be regarded as an action upon the judgment, and, hence, if the judgment was recovered in the Supreme Court the Municipal Court of the city of New York has not jurisdiction thereof.
    Such an action is not one to foreclose a lien upon a chattel, within the meaning of subdivision 10 of section 1 of the Municipal Court Act.
    A lien defined.
    Appeal by the plaintiff, Martin P. Weisel, from an interlocutory judgment of the Municipal Court of the city of Hew York, borough of Kings, in favor of the defendant, sustaining the defendant’s demurrer to the plaintiff’s complaint.
    
      Henry E. Nelson [A. P. Bates with him on the brief], for the appellant.
    
      J. P. Wilson, for the respondent.
   Jenks, J.:

One question raised by the demurrer is whether the Municipal Court of the city of Hew York has jurisdiction of an action authorized by section 1391 of the Code of Civil Procedure, as amended by chapter 461 of the Laws of 1903, when the judgment was recovered in the Supreme Court. The Municipal Court has not jurisdiction of an action upon a judgment of the Supreme Court for the reason that its jurisdiction is extended only to an action upon a judgment rendered in any court not being a court of record. (Mun. Ct. Act [Laws of 1902, chap. 580], § 1, subd. 6.) I think that the action authorized by section 1391 of the Code of Civil Procedure should be regarded as an action upon a judgment.

The amendment to said section 1391 is contained in article 1 of title 2 of chapter 13 of the Code of Civil Procedure, relating to executions, and it is evident that the Legislature thought that the remedy was logically placed under the head of proceedings in furtherance of judgments. The remedy is available only to a judgment creditor, and it is based upon a failure or refusal of the debtor of the judgment debtor to satisfy the execution to the extent of his obligation to the judgment debtor. The penalty of such failure or refusal is an action against him by the judgment creditor. If the presentation of the execution is sufficient to require the payment, it would seem that the action which then is authorized upon failure or refusal to pay, is in furtherance of the collection, and logically is based upon the judgment and the execution, which is but its creature. It seems illogical that the action which is to enforce a demand based on the execution should not also be based upon the execution and, consequently, upon the judgment. If the judgment creditor cannot proceed upon' the judgment, then he, like any ordinary claimant, is bound to establish the liability de novo. It would follow that, despite the judgment directly obtained against the judgment debtor, the judgment creditor must again establish that cause of action against a third party before he can reach money which belongs to the judgment debtor. The remedy is plainly intended to be in furtherance of the collection of judgments in cases in which a peculiar hardship exists and money available to satisfy a judgment is in the hands of a third party. Thus it is based upon the judgment and the execution. Any other construction would defeat the purpose, and there is no sound reason for it.

And, further, such an action is not an action to foreclose a lien upon a chattel, under subdivision 10 of section 1 of the Municipal Court Act. Even if the term chattel,” as used in the context, were generic enough to include the money in question, which is open to debate, there is no lien. A lien is a right of one to retain property in his possession belonging to another until certain demands of him in possession are satisfied.” (Jordan v. National Shoe & Leather Bank, 74 N. Y. 467, 473.) A right to prior payment is not in itself a lien. (19 Am. & Eng. Ency. of Law [2d ed.] 6, citing authorities.)

The judgment should be affirmed.

All concurred.

Interlocutory judgment of the Municipal Court affirmed, with costs.  