Majority
Headnote
1. Supplementary Proceedings—Property Subject.The substantial facts out of which the various proceedings now to be determined arose are as follows: On February 6, 1896, the plaintiffs recovered a judgment in this court against Dr. Harsha for $4,706.82. Execution was issued to the sheriff, and returned unsatisfied. Thereafter the defendant was examined in supplementary proceedings; and on April 6, 1896, an order was madeaappointing Frank J. McBarron receiver of the property of the judgment debtor. On June 5, 1896, an action was commenced by the receiver against the judgment debtor, Edward S. Clinch, the Reformed Low Dutch Church of Harlem, Thomas Crawford, individually and as treasurer of the Reformed Low Dutch Church of Harlem, and others, to have a certain assignment made by the judgment debtor to Edward S. Clinch declared null spud void, and for an account by Mr. Clinch for all moneys received by him thereunder, and that the defendants Clinch, Crawford, and the church pay to the receiver certain moneys belonging to the judgment debtor. In the course of that litigation it appeared
Amount found by Mr. Justice Beekman to be in Clinch’s hands........$47(5 (53-
Interest thereon.................................................. 45 87
Proportion of the salary for March, 1896............................ 16(5 (5(5
Interest thereon.................................................. 15 37
$704 53
Towards the payment of. the item of $166.66, and the interest thereon of $15.37, and the costs of the action, taxed at $172.43, Clinch received' the check of Mrs. Harsha for $398.37; and the said three items were paid with the proceeds of said check, leaving, after allowing Clinch $15 for disbursements, a balance of $28.91 in his hands.
Upon affidavits made on behalf of the judgment creditors, containing, in addition to the usual proof necessary to sustain the application in each instance, irrelevant matters and insinuations entirely out of place,separate orders were granted for the examination of Dr. Harsha, the judgment debtor, of Mr. Clinch, and of the ministers, elders, and deacons of the Reformed Low Dutch Church. The examinations were had. On the part of the church, its treasurer, Thomas Crawford, was examined. Upon the close of the examinations, the attorney for the judgment creditors made several motions to compel the payment over of several amounts which he claimed to have discovered, and to extend the receivership of Frank J. McBarron, the receiver heretofore appointed, to such amounts. The motions will have to be separately considered with reference to the state of the proof against each party proceeded against; but, before doing this, it may be well to ascertain clearly what property of the judgment debtor may be reached by supplementary proceedings, from what moment any such property becomes bound, and what power the court possesses to direct the application of earnings for personal services.
Supplementary proceedings are of a purely statutory character, and the statute limits the power of the court in such proceedings to existing rights and things in esse at the time of the institution of the proceedings. The language of the statute is that the judgment creditor is entitled to the order of examination “upon proof * * * that the judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment,” etc. Code Civ. Proc. § 2438.
From the foregoing, the following summary may be extracted, viz. That proceedings supplementary to execution are directed against property which, at the time of the order for his examination, the judgment debtor has in his possession or under his control, or which is actually d.ue to him, and that no property subsequently acquired, and no future earnings of any kind, and no earnings for personal services rendered within 60 days preceding such order, if necessary for the use of his-family, can be reached. The same rule applies to all supplementary proceedings against third parties, for every one of them proceeds upon an allegation to the effect that the third party has certain property belonging to the judgment debtor which then and there ought to be-applied towards .the satisfaction of the claim of the judgment creditor.
Having now clearly defined the limits within which, in the course of supplementary proceedings, property of the judgment debtor held by him, or in the hands of third parties, may be reached, the several motions made before me will now be determined with reference to the' state of the proof against each party proceeded against.
As to the ministers, elders, and deacons of the Reformed Low Dutch Church: The proceeding against them is based upon an affidavit sworn to January 3, 1898, alleging (among other things not material to be specifically mentioned) “that the sum of $416.66 is due and owing,' to said William J. Harsha, defendant and judgment debtor herein, by the said the ministers, elders, and deacons of the Reformed Low Dutch Church, of the Ninth ward of the city of New York, of which church the-said Harsha is pastor, for his salary for the month of December, 1897.” Upon this affidavit an order was made by Mr. Justice Cohen, directing the said officers of the church and Thomas Crawford, the treasurer of' the church, to appear on January 6, 1898, to be examined concerning the said sum of $416.66, claimed to be due as aforesaid. Under this order, Thomas Crawford was examined as treasurer of the church, and in the course of his examination it appeared that the said sum, representing the said salary for December, 1897, had been paid on December-21st. No testimony to the contrary was given. The fact thus established entitles the officers of the church to an order denying the motion-made against them, and dismissing the proceeding as against them. Under the circumstances of this case, they should also have $30 costs.
As to Mr. Edward S. Clinch: The proceeding against him is based' xipon an affidavit and an order made thereon dated January 22, 1898. By that order he was directed to appear on January 26, 1898, and submit to an examination concerning the sum of $398.37, alleged to be-in his hand's, and belonging to the judgment debtor. The testimony upon that point shows a balance in his hands of $28.91, as hereinbefore stated. The claim that such balance belongs to Mrs. Harsha cannot be sustained. The check was given by Mrs. Harsha to her husband for his benefit, and by him delivered to Clinch, to be used by the latter-
As to Dr. William J. Harsha: The proceeding against him is based upon an affidavit, upon which he was ordered, under date of January 3, 1898, to appear and submit on January 6, 1898, to a general examination concerning his property. As against him, the examination was not to be confined within the narrow limits within which the examination of Mr. Crawford and of Mr. Clinch had to be confined, especially as the allegation against him was that since a former examination in supplementary proceedings had under an order dated March 2, 1896, he had collected monthly the sum of $166.66, over and above what was necessary for the support' of himself and family. This claim of the judgment creditors in effect concedes that $250 of the monthly salary of $116.66 is necessary for the support of Dr. Harsha and his family, and it is only the monthly excess of $166.66 which is sought to be reached. Such excess, it is claimed, has been determined by Mr. Justice Beekman not to be necessary for the support of Dr. Harsha and his family. An examination of the record shows, howrever, that by his decision Mr. Justice Beekman simply held that a certain sum in the hands of Mr. Clinch, and the sum of $166.66, a portion of the salary for March, 1896, were over and above what was necessary for the support, maintenance, and use of the judgment debtor and his family.
The judgment as originally entered read:
“That the sum of two hundred and fifty ($250) dollars a month is, and has been during the times mentioned in the complaint herein, a sufficient provision,” etc.
This was subsequently, on motion, modified so as to read:
“That the sum of two hundred and fifty ($250) dollars a month was, during the time mentioned in the complaint and amended complaint herein, a sufficient provision,” etc.
And this was subsequently, on motion, further amended so as to read:
“That the sum of $476.63, in the hands of Edward S. Clinch, received by him under said assignment, and the sum of $166.66, in the hands of the defendant the Reformed Low Dutch Church of Harlem, which amounts were by the decision herein directed to be paid to the plaintiff, were, during the times mentioned in the complaint and amended complaint, over and above what was necessary for the support and maintenance of the judgment debtor, William J. Harsha, and his family.”
This sufficiently shows that the judgment rendered by Mr. Justice Beekman is not an adjudication binding upon me in the proceedings now pending before me, and that the amount to be allowed as a suitable provision for the support of Dr. Harsha and his family, if it should become necessary to determine it, is open for determination upon the facts as they now appear.
Let orders be entered in accordance with this opinion; after settlement on notice. '
Cases cited
- Stewart v. Foster 1 Hilt. 505 p. 173
- Caton v. Southwell 13 Barb. 335 p. 173