Gibney v. Reilly

Gildersleeve, J. The examination in supplementary proceedings failed to discover any property of the defendant, except a contingent fee in a few cases, which have not been determined, and the result of which as well as the amount to be recovered are speculative and uncertain. The rule is well settled 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 due to him; and no property subsequently acquired, no future earnings of any kind, and no earnings for personal services rendered within sixty days preceding such order, if necessary for the use of his family, can be reached. See Matter of Trustees, 22 Misc. Rep. 645; Columbian Institute v. Cregan, 11 Civ. Pro. 87. These speculative and uncertain contingent fees, in untried actions, cannot be regarded as property in the possession or under the control of defendant at the time of the order for his examination, nor can they be said to be property actually due to him at such time, for the purposes of these proceedings. As there appears to be nothing to receive, it follows that the motion for a receiver should be denied. Motion denied.