
    New York Common Pleas. Special Term
    
    April 4, 1879.
    AARON WALDMAN against FRANK A. O’DONNELL.
    The salary of a public officer, while in the hands of the disbursing officer of a municipal corporation, cannot be reached upon supplementary proceedings founded on a judgment against the officer.
    This was a motion to vacate an order granted herein and served on the -defendant, requiring the comptroller of the city of New York to attend as a witness before a referee, in a proceeding supplementary to execution, and- testify concerning the property of the defendant in his possession—namely, the defendant’s salary as an officer or employee of the corporation, the mayor, aldermen and commonalty of the city of New York; and also restraining the comptroller from transferring or disposing of said property until the further order of the court.
    
      Mlliot Sand ford, attorney for the defendant, for the motion.
    
      Chittenden & Fiero, for the plaintiff, in opposition.
   Larremore, J.

It appears, on the face of the order, that the salary of the defendant, due from the municipal corporation, is in the hands of the comptroller, and he is required to attend and testify as a third person relative to the same.

It has been held, in this court, that such an order should not be granted, as the salary of the officer or employee is, until paid over, mingled in the treasury of the corporation with other funds, and not separated, and cannot be considered, while in the hands of the comptroller, as the property of the defendant.

This question has been fully discussed by Mr. Justice Mo Ad am, and .1 refer the counsel to his well considered opinion (reported ante, p. 28).

The motion to vacate the order is granted, but without costs.

See also 71 N. Y. 498; 26 Am. Rep. 327; Wallace v. Lawyer, 54 Ind. 501; S. C., 23 Am. Rep. 661; MacLellan v. Young, 54 Geo. 399; S. C., 21 Am. Rep. 276; Hightower v. Slaton, 54 Geo. 108; 21 Am. Rep. 273.  