
    In the Matter of the Application of Dennis Hogan, Judgment Creditor, for an Order Directing the Issuance of an Execution Against the Wages, Debts, Earnings, Salary, etc., of Jacinto Costa, Judgment Debtor.
    (Supreme Court, New York Special Term,
    August, 1909.)
    Execution against property — Property subject to execution — Wages, earnings, etc.— Order for execution against wages, earnings, etc.— Defect in affidavit on which order is founded.
    An affidavit to obtain an order that execution issue, pursuant to section 1391 of the Code of Civil Procedure, against the salary of a judgment debtor, which does not state that the judgment was for necessaries but simply for money loaned, is fatally defective; and the order based thereon must be vacated.
    Motion to vacate an order that execution issue pursuant to section 1391 of the Code of Civil Procedure against the salary of a judgment debtor.
    George Parr, for judgment debtor.
    Jacob Levy, for judgment creditor.
   Lehman, J.

The plaintiff, on the 30th day of April, 1900, recovered judgment ag'ainst the defendant, and, on the 27th day of October, 1908, obtained an cx parte order that execution issue pursuant to section 1391 of the Code of Civil Procedure against the salary of the judgment debtor. The judgment creditor now claims that the judgment was for necessaries, and the order that execution issue should not be vacated, even if the amendment of 1908 is not retroactive. The original affidavit, made in October, 1908, does not state that the judgment was for necessaries, but simply for money loaned, and is, therefore, fatally defective, unless the amendment is retroactive. The order must, therefore, be vacated. The facts on this motion are similar to those in Rinschler v. Bell (See opinion of Mr. Justice Erlanger, N. Y. L. J., July 15, 1909), and I shall grant the order on the conditions stated in that opinion. I do not think that the court should order the Comptroller to pay the salary retained to the assignee; if the assignee is entitled to this amount, he must proceed in the usual way to obtain it.

Ordered accordingly.  