Patterson v. Patterson

251 A.D. 272, 296 N.Y.S. 311, 1937 N.Y. App. Div. LEXIS 6915

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1937
• Status: Published

Opinion

Per Curiam.

The court was without power to order a sequestration of defendant’s monthly earnings to become due. There must be a definite property right in the husband in order that the wife obtain relief by way of sequestration under sections 1171 or 1171-a of the Civil Practice Act. Where, as here, defendant is entitled to nothing except payment of services to be performed, his earnings accruing subsequent to the time of the appointment of a receiver cannot be reached by plaintiff in sequestration. (Valentine v. Williams, Inc., 159 N. Y. Supp. 815; affd., 179 App. Div. 884; affd., 223 N. Y. 574; Rolt-Wheeler v. Rolt-Wheeler, 175 App. Div. 852.) The order should accordingly be reversed, without costs, and plaintiff’s motion denied. The cross-appeal from the order requiring the receiver to furnish a bond in the sum of $1,000 on the ground that the amount of the undertaking is excessive should be dismissed.

Present ■—Martin, P. J., O’Malley, Dore, Cohn and Callahan, JJ.

Order appealed from by the defendant unanimously reversed, without costs, and plaintiff’s motion denied. Cross-appeal by plaintiff dismissed.