
    The Twelfth Ward Bank, Judgment Creditor, Appellant, v. Frank C. Hamilton, Judgment Debtor, Respondent.
    (Supreme Court, Appellate Term,
    March, 1908.)
    Supplementary proceedings — Property which may he .reached — Earnings— Earnings within sixty days — Proof required to exempt.
    The fact that a judgment debtor maintains a home for his wife and two children who are dependent upon him, in the city of New York, is not enough to justify the exemption of his earnings for personal services rendered within sixty days, under section 2463 of the Code of Civil Procedure, without proof showing that such earnings are necessary for the use of his family.
    Appeal by the judgment creditor from an order of the City Court of the city of Hew York, granting a motion to vacate the restraining clause contained in a third party order against the city of Hew York to such extent as affects the salary of the judgment debtor for the month of October, 1907.
    Katz & Sommerich, for appellant.
    Respondent filing no brief.
   Per Curiam.

To support the exemption of earnings from application to the payment of a judgment, under section 2463 of the Code of Civil Procedure, it must appear “that those earnings are necessary for the use of a family, wholly or partly supported ” by the judgment debtor’s labor. Here the matter of necessity was sought to be established by nothing beyond the inference to be drawn from the fact that the debtor’s monthly salary was $233.33 and that he maintained a home for a wife and two children, who were dependent upon him, in the city of Hew York. This, in our view, was not enough to justify the exemption; and there was, apparently, no question as to the fact that, on Hovember first (the date of the third party order), the debtor’s salary for the month of October was due and payable. Matter of Trustees, etc. v. Harsha, 22 Misc. Rep. 645. It may well be that, upon the submission of further proof as to the details of the debtor’s necessary expenditures for his family, the exemption can be thoroughly justified; but, upon these papers, the order made is without support.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to the merits of a new application upon further proof.

Present: Gildersleeve, Bischoee and MacLean, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to merits of a new application upon further proof.  