Sturm v. Parsons

Appellate Terms of the Supreme Court of New York

Sturm v. Parsons

134 N.Y.S. 584

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 21, 1912

StatusPublished

This text of 134 N.Y.S. 584 (Sturm v. Parsons) 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

Sturm v. Parsons, 134 N.Y.S. 584 (N.Y. Ct. App. 1912).

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Opinion

GUY, J.

Appeal by defendant from an order adjudging the defendant in contempt of court for violating an order in supplementary, proceedings which forbade him to transfer or dispose of any of his property not exempt by law from execution. The proof shows that-[585]*585a copy of the order was served on January 2, 1912, and that on the same day the defendant, out of the proceeds of the check which represented his salary for the two weeks preceding that date, expended $48 for the board of himself and family during the preceding two-weeks, gave his wife $20 for her expenses, returned to the cash drawer $40 which he had drawn in advance on account of salary, and paid back to his wife $90 which he had borrowed from her. The court at Special Term held that the three payments, $48 for board, $20 to his. wife for expenses, and $90 returned by him to his wife, being money previously borrowed from her, were in violation of the order, and constituted a contempt.

[1] As to the board bill of $48 and $20 for his wife’s expenses, I think the learned judge was in error. Section 2463 of the Code of Civil Procedure provides:

“This article does not authorize the seizure of * * * the earnings of the judgment debtor for his personal services, rendered within sixty days, next before the institution of the special proceeding, when it is made to appear, by his oath or otherwise that those earnings are necessary for the use of a family, wholly or partly supported by his labor.”

It appears from the nature of the payments for board and for" his, wife’s expenses, coupled with the uncontradicted evidence that the defendant had no other means whatever from which to furnish support for his wife and family, that the sums so expended were necessary for the support of his family and came within the provisions of the statute.

[2] The evidence is uncontradicted that the payment of $90 to his. wife for money previously borrowed was made by the defendant early in the day on which the copy of the order was served and before the service of the order, so that from no point of view could the making of said payment constitute a contempt of court or a violation of the order. The finding of tlie learned judge below that the defendant was in contempt in making these three payments was therefore erroneous, and the order must be reversed.

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs, to be applied upon the judgment. All concur.

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GUY, J.

Appeal by defendant from an order adjudging the defendant in contempt of court for violating an order in supplementary, proceedings which forbade him to transfer or dispose of any of his property not exempt by law from execution. The proof shows that-[585]*585a copy of the order was served on January 2, 1912, and that on the same day the defendant, out of the proceeds of the check which represented his salary for the two weeks preceding that date, expended $48 for the board of himself and family during the preceding two-weeks, gave his wife $20 for her expenses, returned to the cash drawer $40 which he had drawn in advance on account of salary, and paid back to his wife $90 which he had borrowed from her. The court at Special Term held that the three payments, $48 for board, $20 to his. wife for expenses, and $90 returned by him to his wife, being money previously borrowed from her, were in violation of the order, and constituted a contempt.

[1] As to the board bill of $48 and $20 for his wife’s expenses, I think the learned judge was in error. Section 2463 of the Code of Civil Procedure provides:

“This article does not authorize the seizure of * * * the earnings of the judgment debtor for his personal services, rendered within sixty days, next before the institution of the special proceeding, when it is made to appear, by his oath or otherwise that those earnings are necessary for the use of a family, wholly or partly supported by his labor.”

It appears from the nature of the payments for board and for" his, wife’s expenses, coupled with the uncontradicted evidence that the defendant had no other means whatever from which to furnish support for his wife and family, that the sums so expended were necessary for the support of his family and came within the provisions of the statute.

[2] The evidence is uncontradicted that the payment of $90 to his. wife for money previously borrowed was made by the defendant early in the day on which the copy of the order was served and before the service of the order, so that from no point of view could the making of said payment constitute a contempt of court or a violation of the order. The finding of tlie learned judge below that the defendant was in contempt in making these three payments was therefore erroneous, and the order must be reversed.

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs, to be applied upon the judgment. All concur.

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Bluebook (online)

134 N.Y.S. 584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sturm-v-parsons-nyappterm-1912.