Beneficial Discount Co. of New York, Inc. v. Spike

• Decision Date: 14 October 1977
• Citation: 398 N.Y.S.2d 651,91 Misc.2d 733
• Parties: In the Matter of The Application of BENEFICIAL DISCOUNT CO. OF NEW YORK, INC. Petitioner, For a Judgment Under Article 78 of the Civil Practice Law and Rules to Correct a False Return of an Execution, Relevy and Reserve Execution, v. George F. SPIKE, Sheriff of Yates County, State of New York, Respondent.
• Court: New York Supreme Court

Page 651

398 N.Y.S.2d 651

91 Misc.2d 733

In the Matter of The Application of BENEFICIAL DISCOUNT CO. OF NEW YORK, INC. Petitioner, For a Judgment Under Article 78 of the Civil Practice Law and Rules to Correct a False Return of an Execution, Relevy and Reserve Execution, v. George F. SPIKE, Sheriff of Yates County, State of New York Respondent.

Supreme Court, Yates County.

Oct. 14, 1977.

Hill & Cook, Syracuse, for petitioner.

Sheridan & Sheridan, Penn Yan, for respondent.

MEMORANDUM DECISION

LYMAN H. SMITH, Justice.

Petitioner commences this Article 78 proceeding against the Sheriff of Yates County seeking an order compelling the respondent to comply with the provisions of CPLR Rule 2223 and, specifically, to compute and collect the interest allegedly due on a money judgment recovered by petitioner and issued to respondent Sheriff for enforcement by way of an income execution (CPLR § 5231). Respondent Sheriff contends that his recovery of the sum set forth in the income execution, without additional interest, satisfies the judgment and that no further action on his part is legally necessary.

The facts are not complex and appear as follows: Petitioner entered a judgment against the judgment debtor for $1,770.65 in the Yates County Clerk's Office on March 2, 1973. ¹ On June 1, 1973 the petitioner's attorney issued an income execution to respondent seeking the sum of $1,813.02 with interest from June 1, 1973. On or about July 19, 1973 respondent served a copy of said income execution on the judgment debtor and voluntary payments were made to respondent, and transferred to petitioner, until early 1975, when said voluntary payments stopped. Respondent then served a copy of said income execution upon the judgment debtor's employer (March 31, 1975) pursuant to CPLR § 5231(d). Additional monies were subsequently withheld from the judgment debtor's wages and transferred to respondent for payment to petitioner through April 6, 1977, when petitioner received from respondent a sum which, when added to previous installments paid to petitioner, constituted a total remittance of the sum set forth on the income execution ($1813.02). Petitioner was also notified by respondent that said final payment represented the balance due on the income execution and, further, the Yates County Clerk received the return on the income execution marked "satisfied". The judgment was so recorded as "satisfied" in the County Clerk's Office as of April 4, 1977.

Petitioner now contends that respondent failed to comply with his lawful mandate to compute and collect additional interest on the judgment from the June 1, 1973 issuance of the income execution through the date of final payment on the underlying judgment, a sum alleged to be $272.03. Respondent advises the Court that his department has never computed and collected interest on an income execution, nor do any Sheriff's Departments in surrounding counties. Further, respondent's position is that the monies to be collected and turned over to judgment creditors on an income execution are limited to those sums set forth on the execution itself.

The question, then, becomes whether or not the respondent Sheriff had the lawful duty to compute and collect interest on the judgment recovered and entered by petitioner judgment creditor from and after the date of issuance of the income execution. While the question posed is simple and straightforward enough, there appears to be no concise, succinct statutory provision which satisfies this query. An analysis of the law, both statutory and decisional, on judgments and interest would seem, however, to clearly dictate that such additional interest must, indeed, be collected by respondent Sheriff and transferred to petitioner.

CPLR Rule 2223 compels an officer to whom a mandate is delivered for execution to execute such mandate according to its command. This provision covers the situation presented here, i. e., a Sheriff enforcing the provisions of an income execution. (See, General Construction Law § 28a; McKinney's Civil Practice Law and Rules, Book 7B, Rule 2223, "Practice Commentaries" (See 2223:1). What, then, is the mandate to be followed upon the issuance of an income execution to the respondent Sheriff?

Money judgments bear interest from the date of entry (CPLR § 5003) at the rate of 6% (CPLR § 5004). These statutory edicts continue the common law rule that interest on a judgment represents damages recoverable by the judgment creditor for the non-payment or detention of monies due and owing on the underlying judgment. See, O'Brien v. Young, 95 N.Y. 428; Donnelly v. City of Brooklyn, 121 N.Y. 9, 24 N.E. 17; Moran Towing and Transportation Company v. Fleming, 175 Misc. 408, 23 N.Y.S.2d 750, aff'd 261 App.Div. 978, 27 N.Y.S.2d 432, aff'd 287 N.Y. 572, 38 N.E.2d 232; Weinstein-Korn-Miller, New York Civil Practice, Vol. 5, paragraph 5003.01. Once entered, the...