
    William H. Allport, as Administrator of the Estate of Charles R. Allport, Deceased, Judgment Creditor, v. Fred Guarino, Judgment Debtor.
    County Court, Monroe County,
    September 5, 1945.
    
      Sidney K. Backus for judgment creditor appearing specially.
   Rosenbeeg, J.

This is a motion brought on by the judgment debtor praying for an order modifying the garnishee execution heretofore issued.

Upon the return of the motion the attorney for the judgment creditor appeared specially and objected to a consideration of the motion upon the ground that the motion had not been brought on in accordance with the provision of the Civil Practice Act. Subdivision 4 of section 684 of the Civil Practice Act provides in substance that either party may apply at any time to the court for an order modifying a garnishee execution upon such notice to the other party as such court, judge or justice shall direct. This motion was brought on by the usual notice given by the attorney for the judgment debtor to the attorney for the judgment creditor.

It is evident from the wording of the Civil Practice Act that such a motion should be brought on after the moving party has presented a petition to the court and the court has directed the method of service.

Because the judgment debtor has failed to proceed in the method prescribed by the act, it would appear that he is not properly in court and, accordingly, the motion must be dismissed; however, without prejudice to a right to renew the same.

Motion dismissed, with $10 costs.

Let an order enter accordingly.  