Broderick v. Archibald

Hibschbebg, J.: The record contains no testimony but that of Camille E. Archibald, the appellant, who was examined as a witness in supplementary proceedings against the judgment debtor, who is her husband, and also as a third party. She testified to payments made to her by him prior to the recovery of the plaintiff’s judgment in discharge of certain indebtedness. She further testified that she had also received from him prior to such recovery' the sum of $150. This she stated was paid to her as. wages at the rate of $5 per week for thirty weeks from January 1, 1900, during which time she was without a domestic and did all the household work herself. She characterized the wages as “ pin money,” by which she said, “ I mean any little money a wife receives for her little expenses.” The effect of her testimony is that her husband agreed to make her an allowance of $5 a week, to be given her for her own personal use during the period in which she was- without a girl and was compelled to do the housework. We are not concerned with the legality • of the contract or with the question whether it could have been enforced. . It was fully executed on both sides. It has never been held to be unlawful for a husband to support his wife, or, as between themselves, for him to give her money to use for that purpose. 3STo element of fraud as against creditors is presented or suggested. But the theory of the original order made by the learned city judge ' was that the contract, being one for payment by .a husband to his wife for her services, was wholly void, and that, therefore, the situation was the same as though she was now in possession of his money to the extent of the void payment. As a matter of fact the appellant, as she testified, had spent all the money in question before the service of the papers in this proceeding, and the only question presented on the appeal is whether the judge had any authority, under such circumstances, to compel a wife by summary order to pay over money so. received and spent by her or suffer the consequences of being in contempt. We find no justification for the order. Section 2447 of the Code of Civil Procedure does indeed ^authorize the judge by whom an [475] ■order or warrant is granted in supplementary proceedings, or to whom it is returnable, to make .«n order directing the judgment debtor, or ■other person, to pay money, or deliver articles of personal property, to a receiver, but that is only, as recited in the' section, “ where it appears, from the examination or testimony taken in a special proceeding authorized by this article, that the judgment debtor has, in his possession or under his control, money or other .personal property, belonging to him; or that one or more articles of personal property, capable of delivery, his right to the possession whereof is not substantially disputed, are in the possession or under the control of another person.” Whether this means to cover the case of money in the hands of a third person might well be questioned, but there can be little doubt that it can only apply to such specific funds as may still remain in the possession or under the control of the third person, and as such would be embraced within the description of <£ articles of personal property, capable of delivery.” It can have no possible application to the case of a wife who has received and expended money which her husband has given her pursuant to an arrangement made in good faith and free from fraud, whether legally enforcible as a contract or otherwise. If the circumstances create a liability on the part of the wife to make good the amount to or for the benefit of creditors, such liability can only be enforced by action, as was done in Conger v. Corey (39 App. Div. 241). The case of Davis v. Briggs (24 N. Y. St. Repr. 896) is cited as opposed to the appellant’s contention. The agreement in that case was held to be void upon its face, and moreover the operation of the decision appears to have been strictly limited to the funds still in the hands of the third person at the time of the granting of the ■ order. In Bauer v. Betz (4 N. Y. St. Repr. 92), also cited, the controversy related to specific personal property, viz., government bonds of the United States, and an order refusing to require "their delivery to the receiver was affirmed. Manifestly what was said about the power of the court to order the payment of money by a third person was not germane to the case. And in Krone v. Klotz (3 App. Div. 587) an order directing the payment of money by a third person to a receiver in supplementary proceedings was reversed by the Appellate Division. It, therefore, appears that no case, so far as our attention has been called to the authorities, supports the [476] order in question, unless it be Davis v. Briggs (supra), and if that decision goes beyond the limitation herein suggested we do not deem it well advised in view of the clear and precise language of section 2447 of the" Code of Civil Procedure. The order, so far as it refuses to grant the appellant’s motion to modify the prior order by striking out the provision directing payment by her to the receiver, should be reversed upon the law and facts, with ten dollars costs and disbursements, and the appellant’s motion should be granted to that extent, with costs. All concurred, except Goodrich, P. J., who read for affirmance.