
    Samuel J. Bloomingdale and Others, Copartners, Doing Business as Bloomingdale Brothers, Respondents, v. William Richardson, Appellant.
    First Department,
    November 4, 1910.
    Execution against salary—prior execution outstanding and unsatisfied — when no acquiescence in unauthorized execution —■ rights of employer when payment made on execution apparently regular.
    An execution against the wages of a judgment debtor under section 1391 of the Code of Civil Procedure can be issued only where no other similar execution is ‘-1 unsatisfied and outstanding.”
    Such execution against the salary is voidable where there is a similar execution 'outstanding and unsatisfied even though the second execution was the first filed with the judgment debtor’s-employer.
    There is no authority for the practice of issuing a number of such executions where there is already one outstanding and unsatisfied and filing them with the employer to be satisfied in order.
    Before applying for such execution the creditor’s attorney must ascertain whether there is a prior execution outstanding.
    
      A judgment debtor cannot be held to have acquiesced in such unauthorized execution against his salary where it is not shown that he knew that it was unlawfully issued.
    Where such execution against a salary appears to be regular upon its face, the employer making payment thereon will be protected against any claim for" repayment.
    Appeal by the defendant, William Richardson, 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 25th day of October, 1910, denying the defendant’s motion to vacate an execution.
    
      Allen Caruthers, for the appellant.
    
      Samuel H. Sternberg, for the respondents.
   Scott, J.:

• This is an appeal from an order denying a motion to vacate an execution issued by order of the court under section 1391 of the Code of Civil Procedure, which permits such an execution to be issued under certain circumstances against the wages, debts, earnings, salary, income from trust funds or profits due and owing or to become due and owing to the judgment debtor.

The appellant is a fireman in the service of the city of New York. Plaintiff’s order for the special execution was made on February 8, 1909, and filed with the city paymaster on February 10, 1909. There was then outstanding and unsatisfied a similar execution in favor of one Hecht. A similar execution had been authorized, by order, on December 17, 1908, but the execution thereon was not filed with the city paymaster until February 17, 1909, after plaintiff’s execution had been so filed. The city paymaster having deducted from appellant’s monthly salary enough to satisfy the Hecht execution, began in July, 1909, to withhold from said salary the monthly sum, provided by the order to be deducted to satisfy plaintiffs’ judgment. The section of the Code of Civil Procedure above referred to is the sole authority for the issuance of an execution payable out of wages or salary to be earned, and to be availed of must be strictly followed. It provides that such an execution can be issued only where no other execution provided for by the section is “ unsatisfied and outstanding.” This is a condition precedent to the issue of such an execution (Rosenstock v. City of New York, 97 App. Div. 341), and an execution issued in defiance thereof is voidable. There is no authority for the practice, which seems to have been followed in this case, of issuing a number of such executions while there is already one outstanding and unsatisfied, and filing them with the city paymaster to be satisfied in order.

An attorney who applies for an order authorizing the issuance of such an execution must ascertain whether there is then another such execution unsatisfied and outstanding, at the peril of having his execution vacated if it should be issued contrary to the provisions of the statute. The plaintiffs’ execution was so issued, and for that reason should be avoided. The Special Term, while recognizing the invalidity of the execution, denied appellant’s motion to vacate it .upon the ground that appellant had so long acquiesced in the deductions from the salary which had been made under it that he must be deemed to have waived the irregularity. It is true that we may assume that he knew that deductions were made from his monthly salary, and perhaps that he kn'ew that they were made in behalf of plaintiffs’ judgment, but there is nothing to indicate that he knew that plaintiffs’ execution was unlawfully issued, and if he did not know that he cannot be said to have acquiesced in the irregularity. The execution was unauthorized and the order permitting the issuance must be vacated, although, of course, as it appeared to be regular upon its face, the city paymaster and the city of Hew York will be protected by it against any claim for a refund of moneys deducted under it and actually paid over to plaintiffs.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to vacate the order of February 18, 1909, granted, with ten dollars costs.

Ingbaham, P. J., Clarke, Miller and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  