B-152304, SEP. 17, 1963

B-152304: Sep 17, 1963

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A GARNISHMENT ORDER WAS ISSUED LEVYING UPON THE WAGES OF MR. THE JUDGMENT AGAINST THE BRENDELS WAS ASSIGNED TO THE UNITED STATES. 322.42 WAS PAID UNDER THE GARNISHMENT ORDER TO THE CITY MARSHAL WHO EXECUTED THE LEVY. 632.41 WAS REMITTED TO THE FEDERAL HOUSING ADMINISTRATION. EXCEPT FOR THE AMOUNT WHICH THE MARSHAL WOULD HAVE BEEN ENTITLED TO RETAIN AS POUNDAGE AND FEES. THE REMAINDER OF THE AMOUNT HE COLLECTED WAS WRONGFULLY CONVERTED BY HIM. THE JUDGMENT EXECUTED UPON WAS A MATTER OF LOCAL PUBLIC RECORD. THE MARSHAL WAS A PUBLIC OFFICER OF THE CITY OF NEW YORK. HE WAS CALLED UPON TO PERFORM THE DUTIES OF HIS OFFICE. HIS FEES AND CHARGES WERE A MATTER OF LOCAL LAW. AS IS POINTED OUT IN THE CLAIMANT'S LETTER OF MAY 24.

B-152304, SEP. 17, 1963

TO MR. LESTER H. THOMPSON, AUTHORIZED CERTIFYING OFFICER, FEDERAL HOUSING ADMINISTRATION:

YOUR LETTER OF AUGUST 15, 1963, WITH ENCLOSURES, SUBMITTED FOR OUR CONSIDERATION THE QUESTION OF THE PROPRIETY OF CERTIFYING FOR PAYMENT THE CLAIM OF MRS. THEODORA E. BRENDEL, WIDOW OF FREDERICK E. BRENDEL. THE CLAIM INVOLVES AN EXCESS OR OVERCOLLECTION BY A MARSHAL OF THE CITY OF NEW YORK UPON A JUDGMENT ASSIGNED TO THE UNITED STATES.

ON NOVEMBER 23, 1946, FREDERICK E. BRENDEL AND THEODORA E. BRENDEL OBTAINED A PROPERTY IMPROVEMENT LOAN INSURED UNDER TITLE I OF THE NATIONAL HOUSING ACT, AS AMENDED. THE BRENDELS DEFAULTED, AND ON JANUARY 30, 1948, THE LENDER OBTAINED A JUDGMENT IN THE CITY COURT OF THE CITY OF NEW YORK FOR THE SUM OF $2,104.96. ON FEBRUARY 3, 1948, A GARNISHMENT ORDER WAS ISSUED LEVYING UPON THE WAGES OF MR. BRENDEL. THE FEDERAL HOUSING ADMINISTRATION PAID THE TITLE I INSURANCE CLAIM OF THE LENDER ON APRIL 6, 1948, AND THE JUDGMENT AGAINST THE BRENDELS WAS ASSIGNED TO THE UNITED STATES.

THE GARNISHEE, WHO HAD BEEN MR. BRENDEL'S EMPLOYER, STATES THAT OVER A PERIOD OF YEARS A TOTAL OF $3,322.42 WAS PAID UNDER THE GARNISHMENT ORDER TO THE CITY MARSHAL WHO EXECUTED THE LEVY. OF THE AMOUNT COLLECTED BY THE CITY MARSHAL, A TOTAL OF $1,632.41 WAS REMITTED TO THE FEDERAL HOUSING ADMINISTRATION. EXCEPT FOR THE AMOUNT WHICH THE MARSHAL WOULD HAVE BEEN ENTITLED TO RETAIN AS POUNDAGE AND FEES, THE REMAINDER OF THE AMOUNT HE COLLECTED WAS WRONGFULLY CONVERTED BY HIM. IT FURTHER APPEARS THAT THE BOND OF THE MARSHAL HAS BEEN EXHAUSTED.

THE JUDGMENT EXECUTED UPON WAS A MATTER OF LOCAL PUBLIC RECORD. THE MARSHAL WAS A PUBLIC OFFICER OF THE CITY OF NEW YORK. HOHAUSER V. MUNICIPAL CREDIT UNION, 262 N.Y. SUPP. 391; HIRSCH V. MARSH, 34 N.Y. SUPP. 2D 570. HE WAS CALLED UPON TO PERFORM THE DUTIES OF HIS OFFICE. HIS FEES AND CHARGES WERE A MATTER OF LOCAL LAW. NEW YORK PUBLIC OFFICERS LAW SEC. 67. THE GARNISHMENT ORDER, AS IS POINTED OUT IN THE CLAIMANT'S LETTER OF MAY 24, 1963, SETS FORTH THE AMOUNT OF THE JUDGMENT AND THE FEES TO BE COLLECTED.

YOU ARE ADVISED THAT AFTER THOROUGH CONSIDERATION OF YOUR LETTER AND THE ENCLOSURES THEREWITH, WE PERCEIVE LITTLE SUBSTANTIVE BASIS FOR FAVORABLE CONSIDERATION OF THIS CLAIM, ARISING OUT OF ERRONEOUS PAYMENTS BY A GARNISHEE TO A LOCAL PUBLIC OFFICER WHO CANNOT BE CONSIDERED TO HAVE SERVED IN A REPRESENTATIVE CAPACITY FOR THE UNITED STATES.

ACCORDINGLY, THE CLAIM OF MRS. BRENDEL SHOULD NOT BE CERTIFIED FOR PAYMENT.