Lutkins v. Lutkins

The action is one brought under section 1391 of the Code of Civil Procedure to recover moneys which the defendant was directed to pay pursuant to an order of a justice of the Supreme Court under an execution against one Theodore L. Lutkins, Jr., which had been returned unsatisfied. The order required the defendant in this action to pay to the sheriff of New York county ten per cent, of the wages of twenty-five dollars per week, of his employee, said Theodore L. Lutkins, Jr.

The claim of the defendant is that the complaint is insufficient because it fails to state that there were no other outstanding executions against such wages, prior to the one in question, for the section of the Code referred to as amended in 1911 permits only one execution against wages to be satisfied at one time.

Reliance is placed by the defendant upon the case *150of Rosenstock v. City of New York, 97 App. Div. 337 ; affd., 181 N. Y. 550. That case, however, is fairly distinguishable from the one presented here for so far as can be gathered from the opinion in that case there was no allegation there as there is here that the order of the justice of the court, directing the payment of a percentage of wages under the execution, was duly made and entered. Section 532 of the Code of Civil Procedure provides that in pleading a judgment or other determination of the court it is not necessary to state the facts conferring jurisdiction but the judgment or determination may be stated to have been duly given or made. It is a presumption therefore that the affidavit upon which the order was made contained sufficient allegations of fact to give the court jurisdiction to make it. If that was not done, the question must be raised by a denial contained in the answer.

The complaint here attacked alleges as has been stated that the order in question was duly made and entered. Because- of the provisions of section 532 above referred to, this was a good pleading. Van Wie v. Delaware & Hudson Co., 71 Misc. Rep. 25.

The demurrer should, therefore, be overruled, with costs, with leave to the defendant to answer upon payment of such costs.

Demurrer overruled, with costs, with leave to defendant to answer upon payment of costs.