Silbert v. Silbert
| Decision Date | 28 February 1966 |
| Citation | 267 N.Y.S.2d 744,25 A.D.2d 570 |
| Parties | Patricia Wyker SILBERT, Respondent, v. Arthur Frederick SILBERT, Defendant; Standard Financial Corporation, Appellant. |
| Court | New York Supreme Court — Appellate Division |
White & Case, New York City, for appellant; John M. Johnston, New York City, of counsel.
Squadron, Alter & Weinrib, New York City, for respondent; David Alter, New York City, of counsel.
Before UGHETTA, Acting P. J., and CHRIST, BRENNAN, HILL and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
In a separation action by a wife which was consolidated with the husband's property action and tried in the Supreme Court, Westchester County, in which, after judgment in her favor, the wife served a restraining notice (CPLR 5222) upon Standard Financial Corporation (a domestic corporation which does no business in Westchester County but has its only place of business [in this State] in New York County) said corporate garnishee (CPLR 105, subd. [h]) appeals from an order of the Supreme Court, Westchester County, entered October 25, 1965, which (on the wife's motion) adjudged appellant guilty of a contempt of court by reason of violating the terms of said restraining notice and fined it $20,400 as the amount of the resulting damage actually suffered by the wife by reason of such misconduct (Judiciary Law, § 773).
Order reversed, without costs, and motion denied, without costs and without prejudice to such further actions or proceedings as plaintiff wife may be advised to take with respect to her claims based on the judgment.
Although the county in which this enforcement proceeding should have been brought is New York County, in which the garnishee 'resides' (CPLR 5221, subd. [a], par. 4; Hoffman v. Oxford Developments, 9 A.D.2d 937, 195 N.Y.S.2d 484; Matter of Groshut v. Kinetophote Corp., 93 Misc. 558, 157 N.Y.S. 312), the defect in venue was waived by the garnishee's failure to take timely exception thereto (6 Weinstein, Korn & Miller, New York Civil Practice, p. 52-277).
The learned Special Term held that appellant violated the terms of the restraining notice by causing its subsidiary to pay the husband salary amounting to $25,288 and by paying dividends for his account amounting to $6,650.83 to assignees by prior assignments. However, a restraining notice does not reach wages (Widder Bros. v. Kaffee, 19 A.D.2d 817, 818, 243 N.Y.S.2d 601, 603; Power v. Loonam, 45 Misc.2d 818, 819, 258 N.Y.S.2d 136, 137; 6 Weinstein, Korn & Miller, ...
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