Majority
Headnote
1. Supplemental Proceedings — Future Darnings.The plaintiff, having recovered a judgment against the defendant, in February, 1897, obtained an order for the examination of the judgment debtor, in proceedings supplementary to-execution, on September 11, 1899. The defendant appeared and was sworn on the return day, September 14th. The examination was adjourned to the 16th, when the defendant testified that he was a stenographer in the employ of the city of Hew York, with a salary of $2,000, payable monthly, and that $166.66 would be due to him on October 1st; that he was not married, but that the salary was the only means which he had; that it was all necessary to his maintenance, and that'he assisted in supporting his mother. The proceeding was then adjourned to the 7th, and afterwards to the 16th, of October. On the 9th of October an order was made appointing Mr. Cadmus re
The first question involved in the appeals is whether a receiver appointed in proceedings supplementary to execution can collect the wages of a debtor which are not wholly earned and not payable at the time of the institution .of the supplementary proceedings. The question was considered by Mr. Justice Freedman in an exhaustive opinion in Re Trustees of Board of Publication & Sabbath-School Work, 22 Misc. Rep. 645 , 50 N. Y. Supp. 171 , in which he decided that the statute limits the power of the court to existing rights and things in esse at the commencement of the proceedings, and that no property subsequently acquired, and no future earnings for personal services rendered within 60 days preceding the order, could be reached, if the same are necessary for the use of the debtor’s family. It is not necessary for us to decide whether in the present case the debtor had a family, within the meaning of section 2463 of the Code of Civil Procedure. In Albright v. Kempton, 4 Civ. Proc. R. 16, Mr. Justice McAdam held that, where an order for the examination was made on July 5th, it was not within the power of the court to order that the monthly salary of the debtor, due on July 10th, be applied on the judgment; that this could be done only by proceedings instituted after the salary was payable. There are other decisions to the same effect, which it is unnecessary to cite. It follows that so much of the order appointing the receiver as directed him to collect the defendant’s salary, and required the city paymaster to pay that salary to the receiver, and the order confirming the latter’s report, should be reversed.
As there was no jurisdiction in the court to make the order directing the payment of the salary to the receiver, there was no power to punish the defendant for contempt, because the fine, as stated in the order, was imposed on the ground that the misconduct of the defendant impaired the rights of Cadmus as receiver. The court having no power to make the order, it was coram non judice and without validity, and the receiver obtained no rights thereunder. For disobedience of such an order the defendant cannot be adjudged guilty of contempt.
It follows that all of the orders should be reversed.
I agree with thé Presiding Justice that the order directing the payment over of the monthly salary earned by the defendant cannot be supported, and that the proceedings supplementary to execution could, in no event, reach such salary. I am, however, unable to agree that the court was without jurisdiction to punish the
BARTLETT, WOODWARD, and HIRSOHBERG, JJ., concur with HATCH, J.
Cases cited
- Higgins v. Wright 43 Barb. 461 p. 529
- De Groot v. Jay 30 Barb. 483 p. 529
- People ex rel. v. Court of Oyer & Terminer 101 N. Y. 245 p. 529