Millington v. Fox

Dtjnhore, Special Judge. It is claimed by plaintiff that "the insurance policy in question was not assignable during the life of the insured, and that no title passed under the assignment to Buncher. Whether that be so or not, under all the evidence, we think it is clear that Buncher held these moneys for the benefit of the judgment debtor, and, as she has testified, subject to her order. The same was paid to her and used by her while the examination was pending. This was her share of the proceeds of the policy of insurance upon her husband’s life. It is urged on the part of the defendant that the money is exempt from claims of creditors by reason of its being the proceeds of a policy of insurance upon the life of defendant’s husband. Leonard v. Clinton, 26 Hun, 288; Austin v. McLaurin, 1 N. Y. Supp. 209, sustain that view. The reverse, however, is held in Crosby v. Stephan, 32 Hun, 478. We prefer to follow the latter authority. We therefore find that the defendant violated the injunction order in collecting and expending the $650 insurance money. The horse and buggies disposed of by defendant were covered by a chattel mortgage dated October 5, 1888, given by defendant to Charles Buncher. It was payable one year from date. The injunction order was served on defendant May 25, 1889. On May 27, 1889, defendant sold the horse in question for $160, and subsequently, while these proceedings were pending, sold one buggy for $60, and another for $15. None of these moneys were applied upon the mortgage, but defendant used the money for her own use, with the knowledge and consent of the mortgagee. At the time of the sale of these articles the mortgage was not due, and the legal title was in defendant. The mortgagee never took possession of these articles under the mortgage. The mortgagee released the horse from the lien of the mortgage at the time of the sale or before payment. As the defendant was engaged in no trade or occupation, the property was not exempt. These facts make the sale by defendant a violation of the injunction order. The defendant, therefore, disposed of $885 in violation of the injunction order. The judgment was for $171.90, and was recovered March 3, 1889. As the defendant is a widow with minor children, we should have been very glad to have reached a different conclusion, but the question is one of law, and not of sympathy. We do not think, under the circumstances, we would be justified in imposing a fine of less than6 $200. The judgment creditor may prepare an order accordingly.