McGivney v. Childs — 5 N.Y. St. Rep. 251

Majority

p. 251

John McGivney, Appl’t, v. Jefferson L. Childs, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed October, 1886.)

Headnote

1 SUPPLEMENTARY PROCEEDINGS — INJUNCTION AGAINST DISPOSAL OF PROPERTY BY DEBTOR — PROPERTY ACQUIRED SUBSEQUENTLY NOT INCLUDED —Code Civ. Pro., §§ '2435, 2469.

Plaintiff obtained an order in supplementary proceedings forbidding defendant from transferring or disposing of his property not by law exempt from execution. At the time of the service of the order upon him, defendant had two horses which with other things were mortgaged to one R. Subsequently, with the consent of the mortgagee, he traded one of the horses for another, some money and a note. Thereafter he paid to the mortgagee on a debt which he owed him but which was not secured by the mortgage, a sum of money and the note, which was received by him as cash. Held, That as the money and note were acquired subsequently to the service of the order, and not being owned by the debtor at that time, the order did not apply to them.

2 Same — Property exempt from execution — Proceeds on sale of are exempt — Code Civ. Pro., § 1391.

Held, That the horse that was traded being one of a team which was necessary to him in his business, was by Code Civ.Pro., § 1391, exempt from execution. And that the money and note, being the proceeds of the sale of such property, the exemption attached to them for a reasonable time.

Appeal from au order made by the county judge of Erie, denying a motion in supplementary proceedings to punish defenddant for an alleged contempt.

Charles F. Whitcher, for appl’t; Barnes & Knight, for resp’t.

The plaintiff, a judgment creditor of the defendant, instituted supplementary proceedings against the latter, under Section 2435 of the Code of Civil Procedure, and ob

p. 252

tained therein an order forbidding the defendant from transferring or disposing of his property not exempt from execution. The order was served upon the defendant on the 17th of October, 1885. At that time the defendant had two horses, of the value of 225 dollars ; which, with three cows owned by him, were mortgaged to one Russell. On the 12th of November following, the defendant, with the consent of the mortgagee, traded one of the horses, a sorrel, for a bay horse, eighty dollars in money, and a note for fifteen dollars. Subsequently, and before the 20th of that month, he paid on a debt that he was owing to the mortgagee, but whieh was not secured by the mortgage, the sum of §88.65 in money, and the note for §15 which the creditor received as cash.

The plaintiff contended before the county judge, and now contends, that such payment was a violation of the injunction order, and rendered the defendant liable to be punished for a contempt. We think the county judge was right in deciding adversely to that contention. The money and the note were acquired subsequently to the service of the order, and not being owned by the debtor at that time, the order did not apply to them. This holding accords with numerous decisions under the old code. (Potter v. Low, 16 How. Pr. R., 549; Campbell v. Genet, 2 Hilt., 290; Graff v. Bonnett, 25 How. Pr. R., 470; Caton v. Southwell, 13 Barb., 335 .) We do not understand that the rule has been changed by the present code. (See. Sec. 2469, C. C. P., and Throop’s note to same.)

Furthermore, the injunction order in this case did not apply to the money and note in the hands of the judgment debtor, for the reason that they were the proceeds of property sold by him, which was exempt from execution, and the exemption attached to such proceeds, for a reasonable time. (Tillotson v. Wolcott, 48 N. Y., 188 .) The affidavit read in opposition to the plaintiff's motion, shows that the defendant had a family dependent' on him for support, and that the team of which the sorrel horse was one, was necessary to him in his business, The horse, consequently, was exempt. (Code C. P., § 1391.)

The order should be affirmed with ten dollars costs and disbursements.

All concur.

So ordered.