§ 5201.Debt or property subject to enforcement; proper garnishee.

(See also Advisory Committee Notes preceding this section under subheading “Liens and Priorities generally.”).

This section replaces parts of §§ 686 through 688 in the execution article.

Subd (a) includes a provision derived from former § 687-a(1) that in order to levy upon a debt not yet due it must be one which will become due “certainly or upon demand of the judgment debtor.” The former provision must be read with former § 684 which permitted a levy upon wages not yet due and not certain to become due, and the new provision with § 5226, which replaces § 684. See notes to § 5226.

The second sentence of subdivision (b) replaces part of the last sentence of § 222-a and part of the first sentence of CPA § 1199. See § 5229(a) and notes.

Subd (c). Negotiable documents of title have been added by subparagraph 4 of proposed subdivision (c), although the attachment article of the former act dealt only with negotiable instruments and stock certificates and the execution article recognized only negotiable instruments. But cf. CPA § 799-a(b). Under the Consolidated Laws, however, property covered by a negotiable document of title may not be attached or levied upon under an execution unless the document is seized, or its negotiation enjoined. See Pers Prop Law § 120 (negotiable document of title must be surrendered to bailee in possession of goods or negotiation enjoined before goods may be attached or levied upon); id. § 210 (same for carrier and negotiable bill of lading); Gen Bus Law § 110 (same as warehouseman and negotiable warehouse receipt); cf. Pers Prop Law § 121 (general provisions for aiding creditor to levy upon negotiable document of title owned by debtor); id. § 211 (same for negotiable bill of lading); Gen Bus Law § 111 (same for negotiable warehouse receipt). Although these provisions do not expressly permit levy by service upon the holder, this section will apply the same rule to negotiable documents as is utilized for corporate stock or negotiable instruments. Indeed, the provisions of CPA § 917 for levying under an attachment upon a negotiable stock certificate, by delivering a copy of the warrant to the holder, thus enjoining transfer, under subd 2, or by seizure of the certificate, under subd 3, are reiterated in § 174 of the Personal Property Law.

The scheme of the execution article of the civil practice act with respect to levy upon intangibles was similar to that of the attachment article. Thus, § 687 permitted levy and sale under an execution of any document or instrument, “whether negotiable or otherwise” by seizure of the instrument, and § 687-a(1) permitted levy upon a debt by service upon the debtor. Negotiable instruments were excepted from the provisions of § 687-a(1), so that the only method of levy upon negotiable instruments was seizure under § 687. Similarly, a non-negotiable instrument might have been seized under § 687 or the debt it represented might have been levied upon by serving the debtor under § 687-a(1). This was substantially the result obtained under § 917(2) of the attachment article.

Under this section, however, these alternative methods of levying upon a non-negotiable instrument or document are eliminated and a levy must be made by serving the person indebted or the person holding the property represented by the document. See § 105(b). Seizure of a non-negotiable instrument under the new CPLR will not operate as a levy upon the debt or property it represents.

Add, L 1962, ch 308; amd, L 1964, ch 298, § 1, eff Sept 1, 1964; L 1997, ch 566, § 20, eff Oct 10, 1997; L 2022, ch 648, § 1, effective November 23, 2022.