H & H Poultry Co. v. Lafayette Nat. Bank
| Decision Date | 28 January 1965 |
| Citation | 45 Misc.2d 480,257 N.Y.S.2d 182 |
| Parties | H & H POULTRY COMPANY, Inc., Judgment Creditor Petitioner, v. LAFAYETTE NATIONAL BANK, Garnishee Respondent. |
| Court | New York Supreme Court |
Carlin, Merriam, Feely & Donohue, New York City, for Lafayette Nat. Bank, garnishee-respondent.
Sahn, Shapiro & Epstein, New York City, for judgment-creditor, petitioner.
Arnold M. Schwartz, Brooklyn, for judgment-creditor, Oscar Mayer & Co.
This is a motion by garnishee bank for an order vacating and setting aside a prior order of this court entered on October 27, 1964, which directed said bank to turn over certain deposited funds of the judgment debtor to the petitioner-judgment creditor. Oscar Mayer & Co., another judgment-creditor, intervenes and cross-moves herein for an order directing the said bank to turn over the deposited funds to it. On the prior proceeding, respondent-garnishee bank defaulted in appearing for reasons not satisfactorily explained herein. Said respondent now advises the court that it is unable to obey the said order since one hour after it was served with the motion papers in that prior proceeding, the bank was served by a City Marshal with the intervening judgment-creditor's property execution.
The petitioner secured and entered its judgment on August 12, 1964. An execution against the property of the judgment debtor (without specification) was sent to the Sheriff of Kings County on August 18, 1964 and thereafter returned unsatisfied. On August 19, 1964 petitioner served an information subpoena and restraining notice to the garnishee herein, which was returned on August 26, 1964 showing sums of the judgment debtor on deposit and certifying that said sums were not subject to any liens, attachments or other encumbrances. On September 23, 1964 petitioner served a notice of motion for a turn-over order on the garnishee bank. On October 7, 1964 the motion was granted on default, and on October 26, 1964 the court's order was made. Meanwhile, the intervening respondent entered its judgment against the same debtor, on September 22, 1964, and on the following day issued an execution, with notice to the garnishee bank, to the City Marshal, who effected his levy that same day.
The rights of the competing judgment creditors herein are governed by the provisions of CPLR 5234(c). The first sentence of that subdivision describes exactly when, and only when, a non-execution creditor...
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