Moss v. Lightfine

Appellate Terms of the Supreme Court of New York

Moss v. Lightfine

60 Misc. 62, 111 N.Y.S. 675

CourtAppellate Terms of the Supreme Court of New York

DecidedJuly 15, 1908

StatusPublished

This text of 60 Misc. 62 (Moss v. Lightfine) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Moss v. Lightfine, 60 Misc. 62, 111 N.Y.S. 675 (N.Y. Ct. App. 1908).

Pincite

Opinion

MacLean, J.

It appears that the receiver of the judgment creditor herein, pursuant to order, demanded of the debtor the surrender of all property in his possession, particularly two trucks and one horse referred to and mentioned by the debtor in his examination in this proceeding, and that the debtor refused to comply with the demand. There[63]*63after the receiver moved to punish him for contempt, but his motion was improperly denied. The record discloses no claim to exemption of the property at the time of the demand or even upon the hearing to punish for contempt. This was necessary, as the property in question was not absolutely, but only qualifiedly, exempt. Wilcox v. Howe, 59 Hun, 268. At that hearing the debtor deposed a disclaimer of ownership and was corroborated by the exhibition of a chattel mortgage that had been filed against the property in question on or about the 24th of October, 1907. The affidavit of the mortgagee disclosed that the mortgage was past due; but that did not make him the sole, absolute, and unconditional owner, for the mortgage provides for the rendition of any surplus arising upon the sale to the debtor herein, who, therefore, may be said to have had a leviable interest subject to the claim of said mortgage.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted.

Gildersleeve and Seabury, JJ., concur.

Order reversed, with fen dollars costs and disbursements, and motion granted.

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MacLean, J.

It appears that the receiver of the judgment creditor herein, pursuant to order, demanded of the debtor the surrender of all property in his possession, particularly two trucks and one horse referred to and mentioned by the debtor in his examination in this proceeding, and that the debtor refused to comply with the demand. There[63]*63after the receiver moved to punish him for contempt, but his motion was improperly denied. The record discloses no claim to exemption of the property at the time of the demand or even upon the hearing to punish for contempt. This was necessary, as the property in question was not absolutely, but only qualifiedly, exempt. Wilcox v. Howe, 59 Hun, 268. At that hearing the debtor deposed a disclaimer of ownership and was corroborated by the exhibition of a chattel mortgage that had been filed against the property in question on or about the 24th of October, 1907. The affidavit of the mortgagee disclosed that the mortgage was past due; but that did not make him the sole, absolute, and unconditional owner, for the mortgage provides for the rendition of any surplus arising upon the sale to the debtor herein, who, therefore, may be said to have had a leviable interest subject to the claim of said mortgage.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted.

Gildersleeve and Seabury, JJ., concur.

Order reversed, with fen dollars costs and disbursements, and motion granted.

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Bluebook (online)

60 Misc. 62, 111 N.Y.S. 675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moss-v-lightfine-nyappterm-1908.