Adolf Gobel, Inc.v.Weil

Appellate Division of the Supreme Court of New York, Second DepartmentDec 1, 1941
263 App. Div. 817 (N.Y. App. Div. 1941)

December 1, 1941.

Appeal from Supreme Court.


Order reversed on the law, without costs, and application denied, without costs, without prejudice to the defendant to apply for relief in the Municipal Court. While the facts alleged in the defendant's petition were, in our opinion, sufficient to justify the order made, it must be reversed because of lack of jurisdiction in the Supreme Court to vacate a process issued in an action in the Municipal Court of the City of New York. An execution is the process of the court from which it is issued. (Civ. Prac. Act, § 635.) The Municipal Court of the City of New York is a court of record (Judiciary Law, art. 2, § 2) with specific powers fixed by legislative enactment and the Municipal Court Code, among which is the power to provide for executions against the person in its judgments and to issue or cause to be issued executions against the person. (New York City Municipal Court Code, §§ 135, 136.) The Supreme Court, at Special Term, was without power to vacate the process of the Municipal Court. ( Matter of Bean v. Stoddard, 207 App. Div. 276.) The respondent argues that the proceeding was maintainable under the provisions of article 5 of the Debtor and Creditor Law. The Supreme Court did not acquire jurisdiction for the reason that the petitioner failed to comply with section 125 of that law. ( Matter of Quick, 92 App. Div. 131; affd., 179 N.Y. 601.) Lazansky, P.J., Hagarty, Johnston, Taylor and Close, JJ., concur.