
    Jacob Neu and Others, Copartners, Doing Business under the Firm Name and Style of Neu-Gilchrist and Spedick, Appellants, v. William J. Fox, Defendant. John A. Schwarz, Respondent.
    Second Department,
    May 1, 1912.
    Execution — execution against salary — practice — motion to vacate order — form of order.
    An order for an execution against the salary of a judgment debtor, obtained pursuant to section 1391 of the Code of Civil Procedure, should not be vacated on the motion of another judgment creditor upon the ground that the order for the execution was granted by the court and not by the justice.
    Appeal by the plaintiffs, Jacob Feu and others, copartners, etc., from orders of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 20th day of December, 1911, the loth day of January, 1912, and the 22d day of January, 1912, respectively.
    
      Alfred J. Gilchrist [C. Elmer Spedick with him on the brief], for the appellants.
    
      William H. Burby [Henry I. Kowalsky with him on the brief], for the respondent.
   Thomas, J.:

The plaintiffs, judgment creditors, obtained an order for the first execution against the defendant’s salary, and the judgment creditor Schwarz subsequently obtained a similar order and thereupon moved to vacate the first order upon the ground that it was granted by the court and not by the justice, and from the order granting such motion the plaintiffs appeal.

It is unnecessary to consider the contention that the order, though in form that of the court, may be stripped of whatever indicates such nature and be regarded- as a chambers order. The Code of Civil Procedure (§ 1891) provides that “ The judgment creditor may apply to the court in which said judgment was recovered or the court having jurisdiction of the same without notice to the judgment debtor, and upon satisfactory proof of such facts by affidavits or otherwise, the court, if a court not of record; a judge or justice thereof, must issue, or if a court of record, a judge or justice, must grant an order directing that an execution issue. * * * Either party may apply at any time to the court from which such execution shall issue, or to any judge or justice issuing’ the same, or to the county judge of the county, and in any county where there is no county judge, to any justice of the city court upon such notice to the other party as such court, judge, pr justice shall direct for a modification of said execution, and upon such hearing the said court, judge or justice may make such modification of said execution as shall be deemed just, * * If, now, the order be tested by this statute, it shows on its face that the application was made to the court and that the judge presiding at the court granted the order as the statute directed him to do. The order indicates to what court the application was made, when it was made, and that upon such application the order was granted. Had it been a Justice’s Court, the justice would issue the execution. As it was a court of record the judge or justice presiding, as compelled, granted an order for the execution. The Code consistently directs that for a modification the party may apply to the court from which such execution shall issue, thereby intending a court of record, or to any judge or justice issuing the same, thereby intending a court not of record. The order conforms to the literal requirements of the statute.

The order appealed from should be reversed, with ten dollars costs and ■ disbursements, and the motion denied; with • ten dollars costs.

Jenks, P, J., Hirschberg, Carr and Woodward, JJ., concurred.

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