McGivney v. Childs

Smith, P. J.: The plaintiff, a judgment creditor of the defendant, instituted supplementary proceedings against the latter, under section 2435 of the Code of Civil Procedure, and obtained 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, which, with three cows owned by him, were mortgaged to one Bussell. On the twelfth 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 twentieth of that month, he paid on a debt that he was owing to the mortgagee, but which was not secured by the mortgage, the sum of eighty-three dollars and sixty-five cents in money, and the note for fifteen dollars, 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 [609] to the service of the order, and not béing 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., 549; Campbell v. Genet, 2 Hilt., 290; Graff v. Bonnett, 25 How. Pr., 470; Caton v Southwell, 13 Barb., 335.) We do not understand that the rule has been changed by the present Code. (See Code Civil Pro., § 2469, 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 Civil Pro., § 1391.) The order should be affirmed, with ten dollars costs and disbursements. Barker, Haight and Bradley, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.