
    Harry B. Reibstein, Respondent, v. William A. Stenz, Appellant.
    First Department,
    November 4, 1910.
    Execution against wages — only employer of judgment debtor liable to pay — facts not establishing relation of master and servant.
    An order directing an execution against wages pursuant to section 1391 of the Code of Civil Procedure cannot be issued to the agent of the employer of the judgment debtor.
    Thus, an execution against wages should not issue to a copartnership where it appears that the judgment debtor acted as selling agent for certain mills on a commission; that he employed sales agents on his own account charging commissions to the firm on the net sales; that the firm had an arrangement with the mills by which the purchase price was remitted to the firm which thereupon deducted and paid the commissions to the j udgment debtor and its own commissions, remitting the net proceeds of the sale to the mills; that by an agreement between the debtor and the firm the latter permitted him to draw a sum monthly for expenses, the same to be paid on his account and charged to his commissions, and it further appears that the mills consigned the goods sold to the firm. Under sucli circumstances the judgment debtor is not an employee of the firm, but on the contrary is an employee of the mills for which the firm acts as agent.
    Appeal by the defendant,. William A. Stenz, judgment debtor, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 20th day of July, 1910, denying the defendant’s motion to vacate an order which directed the issuance of an execution pursuant to .the provisions of section 1391 of the Code of Civil Procedure, and to set aside the execution issued pursuant to such order.
    
      
      Harold A. Andrewes, for the appellant.
    
      Joseph I. Stahl [Jacob Manheim with him on the brief], for the respondent.
   Laughlin, J.:

The order was granted on the theory that the judgment debtor was an employee of the firm of Boessneck, Broesel & Go., and that said firm was indebted to him for earnings, wages or salary in the sum of $200, and would thereafter become indebted to him monthly during his employment for a like amount. The provisions of said section material to the questions presented by this appeal are as follows:

Where a judgment has been recovered, and where an execution issued upon said judgment has been returned wholly or partly unsatisfied, and where any wages, debts, earnings, salary, income from trust funds or profits are due and owing to the judgment debtor, or shall thereafter become due and owing to him, to the amount of twelve dollars or more per week, and where no execution issued as hereafter provided for in this section is unsatisfied and outstanding against said judgment debtor, 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 against the wages, debt, earnings, salary, income from trust funds or profits of said judgment debtor, and on presentation of such execution by the officer to whom delivered for collection to the person or persons from whom such wages, debts, earnings, salary, income from trust funds or profits are due and owing, or may thereafter become due and owing to the judgment debtor, said execution shall become a lien and a continuing levy upon the wages, earnings, debts, salary, income from trust funds or profits due or to become due to said judgment debtor to the amount specified therein, which shall not exceed ten per centum thereof, and said levy shall be a continuing levy until said execution and the expenses thereof are fully satisfied and paid or until modified as hereinafter provided. It shall be .the duty of any person or corporation, municipal or otherwise, to whom said execution shall be presented, and who shall at such time be indebted to the judgment debtor named in such execution, or who shall become indebted to such judgment debtor in the future, and while said execution shall remain a lien upon said indebtedness to pay over to the officer presenting the same, such amount, of such indebtedness as such execution shall prescribe until said execution shall be wholly satisfied and such payment shall be a bar to any action therefor by any such judgment debtor. If such person or corporation, municipal or otherwise, to whom said execution shall be presented shall fail, or refuse to pay over to said officer presenting said execution, the percentage of said indebtedness, he shall be liable to an action therefor by the judgment creditor named in such execution, and the amount so recovered by such judgment creditor shall be applied towards the payment of said execution.”

The order is based on the affidavit of one of the attorneys for the judgment creditor, which states that the judgment debtor is in the employ of said firm, “and that his wages, earnings and salary exceed the sum of §12.00 per week, and amount to the sum-of Two hundred dollars per month, and that the same is payable to him by the said [firm] each and every month, and that the same is now due and owing to said judgment-debtor, and shall hereafter become due and owing to him.” The order and the execution follow this recital in the affidavit.

Affidavits made by the judgment debtor and by a member of said firm denying that the judgment debtor was in the employ of the firm, or that any wages or salary are due or would become due to him from said firm, were read in support of the motion to vacate. The examinations of the judgment debtor, and of an employee of said firm in proceedings supplementary to execution, were read in opposition to the motion, and it is claimed that they support the order and execution. We are of opinion that they do not. The judgment debtor testified that he was in business for himself in connection with said firm, not, however, in its employ, hut acting as selling agent on a commission basis for silk mills, the names of which he gave; that he received three and one-half per cent from some of the silk mills and four per cent from others, and employed sales agents on his own account and charged commissions to the firm on ' the net amount of sales; that said firm has an arrangement with the silk mills by which the purchase price is remitted to the firm and the firm deducts and pays the commissions due to him and its own commissions and remits the net proceeds of the sales to the mills; that by an oral agreement between him and said firm, the latter permits him to draw the sum of $200 each and every month for expenses and the same is paid on his account and charged to his commissions when received. The deposition of the employee of the firm is to the same effect, and further states that the silk mills consign the goods to the firm.

These depositions fail to how that the judgment debtor is in the employ of said firm, or that there is any binding contract by which the firm is obligated to make any advances to him. The only legitimate inference from the evidence is that the contract of the judgment debtor is with the silk mills and that said firm acts as agent for the mills. For a breach of the contract the remedy of the judgment debtor would be against the principals and not against their agent. The provisions of said section of the Code of Civil Procedure do not authorize an execution against an agent of the employer of the judgment debtor. The person, firm or corporation against whom the execution is authorized to be issued becomes, by virtue of the provisions of law quoted, liable to the judgment creditor. On the facts liere shown it would be no defense to an action by the mills against said firm that it had paid the money to apply on the execution. Agents are responsible to their principals , and may only disburse the moneys of their principals by their authority, or pursuant to an order or judgment of a court which becomes binding on. the princip>ai by having been made in an action to which he is a party or on due notice to him, which is not the case here.

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion to vacate the order and execution granted, with ten dollars costs.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

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