Cummings v. Timberman

49 How. Pr. 236

• Court: New York Court of Common Pleas
• Decided: July 15, 1875
• Status: Published

Opinion

In this case a judgment was obtained some time ago against the defendant, and in supplementary proceedings he was examined as to his property. Upon this examination it was proven that he had no property. 'It was shown further that he drove a milk route, from the earnings of which he supported his family. The plaintiff herein recently, applied to chief judge Daly, in this court, to have a portion of these earnings applied, toward the payment of the judgment. In deciding the case, Daly, C. J., says: “This application must be denied. The forty-nine dollars which the plaintiff asks to have applied toward the payment of the judgment are earnings of the defendant for his personal services during the past sixty days, and cannot be applied when it appears by his affidavit that such earnings .are necessary for the family wholly supported by him, consisting of his father, mother and sister. He drives a milk wagon, which is mortgaged for more than it is worth, and earns a small amount daily by getting milk from a person in Westchester and retailing it to his customers' in this city; the milk being given to him at a fixed price to be paid out of the money which he obtains from the customers to whom he retails it. The small amount remaining beyond what must be paid for the milk is, evidently, not more than sufficient to support himself and the family supported by him. The proceeding must therefore be discharged, as. the amount which is due will be required when collected from time to time for the support of himself and family. The supplemental proceeding therefore must be discharged, and the application for the appointment of a receiver denied.”