Bush v. White , 12 Abb. Pr. 21 ( 1860 )

Robertson, J.

—The plaintiff recovered a judgment against the defendant on the 23d June, 1860. The execution issued thereon being returned unsatisfied, the judgment-debtor was served, on the 29th October, with an order for his examination, which order also forbade him to interfere in any manner with any of his property until further order in the premises. The examination took place on the 10th November, when it was disclosed that the Board of Education was indebted, “ in an amount exceeding ten dollars,” to the defendant for work done and materials furnished by him, which was admitted to have fallen due on the 13th of September.

This motion is for an order requiring the Board of Education to pay the amount due the defendant towards the satisfaction of the judgment. The order for the examination of the third party was served on the 16th of November, and the examination took place on the 30th. The question for decision is as to the inception of the sixty days mentioned in section 297 of the Code, within which any property earned, though not exempt from execution, is exempted from liability to be applied on account of the judgment under an order of the judge.

The only order referred to in such section is that made for the application of property, and the obvious meaning of the section is, that only such earnings are exempted as have been earned within the sixty days previous to the date of the granting or refusing the order requiring such earnings to be applied towards the satisfaction of the judgment; and not those that may have been earned within sixty days previous to the service of the order for the examination of the judgment-debtor, which is not mentioned or referred to in such section.

Motion granted.