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Gerregani v. Wheelwright

3 Abb. Pr. 264 Court N.Y. Sup. Ct. English

Delivered by Van Vorst, J.,

Contents

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p. 264
GERREGANI against WHEELWRIGHT.
New York Common Pleas; Special Term,
October, 1867.

Headnote

Supplementary Proceedings.—Attachment.
To sustain an application for an attachment to punish a judgment debtor for disposing of moneys received by him after the service of an injunction order in supplementary proceedings, the creditor must show affirmatively that 'he money was already earned by or due to the debtor, when the order was ■served.
Application for an attachment.
This was a motion for an attachment to punish a judgment debtor for an alleged contempt in disposing of property in
p. 265
violation of an order for Ms examination in proceedings supplementary to execution.
F. H. Bryan, for the motion.
W. G. Wheelwright, opposed.

The order for the examination of the judgment debtor was made on March 11, 1867, and was served on him on the 16th of the same month. The order restrained the defendant from interfering with or disposing of his property. The proceedings show that the examination was commenced on the 28th day of May and continued, with various adjournments; until August.-

In the course of his examination, on the 27th June, defendant said: “ I had no money of any amount when this order -was served on me; I have received money since, $624 99-100; I have spent it all.”

The court is asked to punish the defendant for receiving and disposing of this money.

It is fair to presume from the proceeding that the sum was received as a portion of his salary as a clerk in bank. It was so claimed on the argument and not denied.

It does not appear that the money so received and disposed of was due to the judgment debtor at the time the order was served on him, or that it had been previously earned. On the other hand it is highly probable from the facts disclosed that it was subsequently earned. If so it could not be reached in tMs proceeding, and the defendant had a right to receive and dispose of it. (Browning v. Betts, 8 Paige, 568; Stewart v. Foster, 1 Hilton, 505.)

In any event, plaintiff, to succeed on this application for an attachment, should have shown affirmatively that the money was earned by or due to the defendant at the time of the service of the order for his examination. This he has not done (Potter v. Low, 16 How., 549 ).

Motion denied without costs.