County Court, Livingston County, December, 1914. [Vol. 88. his motion for a dismissal of the complaint upon the ground that plaintiff had failed to prove nonpayment, the case of Conkling v. Weatherwax, 181 N. Y. 258. This case does not support the contention of defendant's counsel. The point upon which defendant relies was held to the contrary in that case by a majority of the court. The Court of Appeals so construes and holds that decision in the case of Dowling v. Hastings, 211 N. Y. 200, and to the same effect are the decisions of the Appellate Division, all rendered since the decision in Conkling v. Weatherwax, in Pace v. Woodside Heights Land Corporation, 124 App. Div. 893; Bremer v. Ring, 146 id. 725; Lynch v. Lyons, 131 id. 120; Simon v. Kiniro, 139 id. 189; Acharan v. Samuel Brothers, 144 id. 184 and Dose v. Hirsch Bros., 65 Misc. Rep. 515. In the case of Redmond v. Hughes, 151 App. Div. 100, which is a mortgage case nearly the same as this with the exception that in that case there was a bond, the court says: "Payment is an affirmative defense, and the burden of pleading and proving the same was upon the defendants. There is nothing to the contrary in what was actually decided in Conkling v. Weatherwax, supra." There being in equity in this case an implied contract to repay the amount of the mortgage by the mortgagor according to the terms thereof this case is brought within the law, as stated in the cases above cited and plaintiff was not compelled to prove nonpayment in this case to make out his cause of action. None of the other grounds urged by defendant's counsel entitle him to a nonsuit or a dismissal of plaintiff's complaint. Judgment must be ordered for plaintiff upon his motion. Judgment for plaintiff. Misc.] County Court, Livingston County, December, 1914. FRANK HUBERTUS and OTTO HUBERTUS, Appellants, v. WILLIAM REILLY, Respondent. (County Court, Livingston County, December, 1914.) Code of Civil Procedure, § 1391-action against employer of judgment debtor after refusal to pay pursuant to garnishee execution — pleading and proof. Section 1391 of the Code of Civil Procedure was enacted for the purpose of enabling creditors to collect their judgments where defendants were receiving wages of more than twelve dollars a week and is only intended to enable creditors to obtain by compulsory process ten per cent of such wages that the employee would not pay voluntarily. In no event can an employer be compelled to pay more than ten per cent of the wages actually earned by the employee, and in all cases the amount of such wages must be shown before plaintiff can recover in an action brought against the employer under said section. Upon the trial of an action to recover the full amount of the original judgment, its recovery, the issuance of an execution thereon and the return of the same nulla bona, the obtaining of a garnishee execution under said section 1391, the presentation of the same to the defendant and his refusal to pay the same were proved. No evidence was given as to the amount actually earned and received by the judgment debtor after the original demand under the garnishee execution, a second demand having been made five months thereafter, though it appeared that during a portion of the time the judgment debtor was receiving in excess of fifteen dollars a week. On plaintiffs' objection evidence offered by defendant to show the wages actually earned and received by the judgment debtor was excluded. The garnishee execution was never changed or modified. Held, that plaintiffs were entitled to recover something, and a judgment in favor of defendant will be reversed and a new trial ordered before the justice of the peace who tried the action. County Court, Livingston County, December, 1914. [Vol. 88. APPEAL from Justice's Court. Action by Frank Hubertus and Otto Hubertus against William Reilly. From judgment for defendant, plaintiffs appeal. A. J. Hibbard, for appellants. Newton B. Gorham, for respondent. ABBOTT, J. On the 9th day of April, 1913, the plaintiffs and appellants recovered a judgment in Justice's Court before Horace A. Burdick, justice of the peace of the town of North Dansville, N. Y., against one Samuel Peterson in the sum of forty-nine dollars and ninety-six cents damages and costs. On the 10th day of May, 1913, an execution issued by said justice against the defendant Peterson was returned wholly unsatisfied. Upon satisfactory proofs being presented to said justice of the facts required by section 1391 of the Code of Civil Procedure a garnishee execution was issued by said justice requiring the above named William Reilly, defendant and respondent, the employer of said Peterson, to pay to the officer presenting said execution the sum of one dollars and fifty cents per week, that amount being ten per cent of the earnings of said Peterson, as shown by the affidavit of one of the plaintiffs herein presented to said justice, until the whole amount of said judgment, costs and charges was fully paid. Said garnishee execution was duly presented to said defendant Reilly by the officer having the same for collection and payment demanded, as in said execution provided, on or about May 10, 1913, and again on or about October 30, 1913, and payment was on both occasions demanded by said officer and refused by said defendant. Misc.] County Court, Livingston County, December, 1914. The execution in question has never been changed or modified and is still in force and is the only garnishee execution outstanding against said defendant Peterson. This action is brought against said defendant Reilly, an employer, under section 1391 of the Code of Civil Procedure, to recover the amount of said judgment. Defendant filed with the justice a written offer of judgment signed by him for the sum of eleven dollars and costs, which offer was not accepted by plaintiff. Upon the trial of the case, the obtaining of the original judgment, the issuing of the execution thereon and that the same had been returned wholly unsatisfied, the obtaining of the garnishee execution and the presentation of the same to the defendant and his refusal to pay the same were all fully proved. The plaintiff claimed that the defendant was liable to pay the sum of ten per cent per week, in this case the sum of one dollar and fifty cents per week, under the order of the justice until said judgment was fully paid, irrespective of any proof as to the amount earned or received by said Peterson in the premises. That the only way he could escape such payment was to come before the justice and have the execution modified or vacated. Plaintiffs gave no evidence on the trial of the case as to the amount actually earned and received by said Peterson after the original demand under the garnishee execution. It appeared, however, that during a portion of the time Peterson was receiving in excess of fifteen dollars per week. Defendant attempted to prove upon the trial of the case the amount of wages actually earned and received by Peterson, but under plaintiffs' objection this evidence was excluded. The trial was before a justice and a jury, and the jury rendered a verdict in favor of the defendant of no cause of action, whereupon said justice entered a judgment against the plaintiffs and in favor of the defend County Court, Livingston County, December, 1914. [Vol. 88. ant for nine dollars and ten cents costs, from which judgment this appeal is taken. The section of the Code under which this action is brought was enacted for the purpose of enabling creditors to collect their judgments in cases where the defendants were receiving wages weekly to at least the amount of twelve dollars, where such judgments could not be collected by execution. The section of the Code prescribes the manner of obtaining a garnishee execution thereunder. An affidavit is presented to the justice or judge showing that the defendant is receiving in weekly wages at least the sum of twelve dollars; that no other garnishee execution is then outstanding against him, and, upon such facts being shown to the satisfaction of justice or judge, a garnishee execution, so called, is issued directing such employer to deduct weekly from the wages of such defendant employee ten per cent of his weekly wages and pay them over to the officer holding such execution until the same is fully satisfied. Such section also provides that said employer may apply to the court for a modification of said execution. In case the employer refuses to make such payments the section provides that an action may be brought against him to collect such ten per cent of the wages. In this case no application was made for the modification of the execution, and after a sufficient length of time had elapsed so that computing ten per cent of Peterson's weekly wages at one dollar and fifty cents per week would amount to the total of the judgment sought to be collected, and, on the refusal of the defendant to pay the same, this action was commenced. Plaintiffs' contention that on the failure of the employer to get the execution modified he was liable for the one dollar and fifty cents per week until such execution was fully paid, irrespective of the amount |