Majority
p. 313The Murray Hill Company, Plaintiff and Judgment Creditor, v. Fritz Kuhnle, Defendant and Judgment Debtor. (City Court of New York, Special Term, March, 1908.)
Headnote
Supplementary Proceedings: Property which may be reached — Earnings: Disobedience to order or subpoena as contempt — Violation • of order forbidding disposition of property.The provisions exempting the earnings of a judgment debtor for personal services rendered within sixty days next before the institution of supplementary proceedings, when it appears that those earnings are necessary for the use of a family wholly or partly supported by his labor, should be liberally construed in his favor.
Where a judgment debtor with a family testified, upon his examination in supplementary proceedings, that his only means of livelihood was a building contract, and that, with money received, after the service of the order for his examination, for work done under the contract prior to such service, he had paid his employees who were working under the contract, he is not guilty of contempt ■for transferring property in violation of the injunction order; as, under section 2463 of the Code of Civil Procedure, his net profits realized from the contract for sixty days preceding the examination constitute personal earnings.
Motion to punish judgment debtor for contempt.
Pressinger & Newcombe, for judgment creditor.
No other appearances.
This is a motion to punish the judgment debtor for contempt for transferring property in violation of the injunction contained in the order for his examination. The judgment debtor testified in his said examination that his only means of livelihood was a certain contract he had
p. 314
for carpentering work on a certain described building for the sum of $1,825, payable “ 80 per cent, of the value of the labor and materials on the job, and remaining 20 per cent, thirty days after the completion of the work called for under said contract.” That he received payment under said contract on Fridays and Saturdays of each week; that he received one payment on February 1, 1908, of $150, and, another on February 7, 1908, of $100, for work done previous to the service of said order for his examination upon him. Said order was served on the judgment debtor on January 31, 1908. That he paid out said moneys to his employees who were working on said job and under said contract. Assuming, as I will, that the moneys received on February first and February seventh were earned previously, 'still I fail to discover any contempt of court in paying it away in discharging expenses necessarily incurred by the judgment debtor in running his business. The defendant is a married man with a family, and by law he is required to provide for them; he can do this only.through some form of remunerative employment, and being carried on with the assistance of others I take it that his personal earnings are the net profits realized from it, and those for sixty days preceding the examination the statute exempts from seizure under these proceedings. Code Civ. Pro., § 2463. The material as well as the labor required to complete this contract, received under circumstances like those disclosed in this motion, equitably belong to those furnishing the same, and it is only through them that any net results reach the defendant. Sandford v. Goodwin, 20 Civ. Pro. 276. The exemption for the benefit of the judgment debtor to enable him to support his family out of Ms earnings should be liberally construed in favor of the debtor. It is a humane provision. Miller v. Hooper, 19 Hun, 394 . I am, therefore, of the opinion that the defendant is not guilty of' any contempt. The judgment creditor may continue the examination to discover further property. Motion denied, without costs, with leave to renew.
Motion denied, without costs, with leave to renew.