Gray v. Ashley , 53 N.Y.S. 547 ( 1898 )

Olcott, J.

This appeal is taken from an -order in third party . supplementary proceedings directing one Donald Grant, a captain of police of the city of Hew York, to pay over to a judgment creditor of one. Charles H. Ashley, a police officer under his charge, the sum of $79.20, being the salary of said Ashley for the month of December, 1897, which Grant collected for said Ashley.

The order for the examination of Grant was obtained on December 31, 1897, and the proceedings were commenced on that day.

The order was made returnable on January 5, 1898. On that day Captain Grant was examined, and testified as follows:

“ I know Charles H. Ashley, the judgment debtor above named. He is a patrolman under my charge. I collected his salary for him for the month of December, 1897, which amounts to $79.20, which I still have in my possession. I have no other money or property belonging to the said Charles H. Ashley.”

It will be observed that he did not testify, nor was he asked whether he had this money, or even whether it was due to or earned by Ashley, at the commencement of the special proceeding; and without evidence on this point, the order appealed from could not be sustained. Columbian Inst. v. Cregan, 3 N. Y. St. Repr. 287; .Cerregani v. Wheelwright, 3 Abb. (N. S.) 264; Smith v.— , 4 Edw. 653.

This rule ha& been observed so strictly that in First National Bank v. Beardslee, 8 Week. Dig. 7, it was held that, under an order granted on a certain day, a salary which does not become payable until the 'close of that day, cannot be reached.

But the respondent in the proceeding at bar claims that this omission in Captain Grant’s testimony is supplied by the affidavit of the judgment creditor’s attorney upon which this proceeding is •founded, wherein it is deposed, “ as deponent is informed by one Michael Bergen, Donald Grant has personal property of the judgment debtor exceeding ten dollars in value.”

We do not think that this hearsay evidence, however sufficient it may have been to justify the commencement of this proceedings is sufficient to supply the above-noted deficiency in Grant’s, testimony for the purpose of warranting the order here appealed from.

The statute contemplates that all the jurisdictional facts shall be proven by direct evidence of the person orally examined.

The order appealed from is also defective in directing the delivery of the money in the third- party’s hand to the judgment creditor’s attorney upon his. giving a receipt therefor. There is no statutory or other warrant for such an order; the payment or delivery must be made to the sheriff or to the receiver.- Code,” § 2447; Dickinson v. Onderdonk, 18 Hun, 479; Birnbaum v. Thompson, 5 Law Bull. 30.

And a more general and equally controlling objection to the order is to be found in the principle that no third-party proceedings can be taken against a public disbursing officer for the purpose of reaching salary in his hands due to a public officer; the disbursing officer in such case being, trustee of the public, to hold and disburse its money intrusted to him for. the specific object of paying salaries.

So exhaustive a discussion of this principle is to be found in the case of Remmey v. Gedney, 1 City Court, 28; approved in Waldman v. O’Donnell, 57 How. Pr. 215, that it. is not necessary to do more than refer, to that decision.

If it be objected that the rule there laid down does not extend to a. captain of police because he is not a disbursing officer of the municipality, but collects for the officers in his precinct only, as a matter of convenience and as their .agent, we answer that the rule is one not for the protection .of the individual but for the public good and public policy, and that the principle .applies to .the salary wherever found until through the ordinary channels it has actually reached the public official.

This principle is generally applicable to those holding in any public and official capacity, the official salary which is to go to a debtor.

Clerks of courts and sheriffs (7 Humph. 132), pursers in a navy (4 How. [U. S.] 20), pension agents, and even a private person collecting under a power of attorney from the pensioner (3 Sneed, 379), have been held to be included in this exemption from garnishment.

The order appealed from should be reversed, but without costs.

Schuchman, J., concurs.

Order reversed, without costs.