
    In the Matter of the Application of Edward Van Ness, for the Examination of A. Edward Woodruff, in Proceedings Supplementary to Execution.
    (Supreme Court, New York Special Term,
    August, 1897.)
    1. Notice of motion. — Cannot be vacated by an independent motion.
    A notice of motion, whether by order to show cause, or in the form of a notice signed by an attorney, is not a writ or process which can be vacated or quashed upon an independent motion made for that • purpose.
    
      Ü. Supplementary proceedings — Presumption that money in debtor's possession is applicable to his debts — Order to pay.
    Where a debtor, upon an examination had in supplementary proceedings, states that he then has, in his possession and at his disposal, the sum of $1,000 in cash, the justice who granted the order for ex-animation may properly infer that the money was the proceeds of ■ property or services, sold or rendered prior to the granting of the order, and did not arise out of the earnings' of the debtor exempt by statute, and accordingly he may make an order requiring the debtor to pay the sum of $700, in order to satisfy the judgment in question and the resulting costs. .
    In supplementary proceedings upon a judgment in favor of Edward Van Hess,' against A. Edward Woodruff, the examination of the debtor disclosed that he had ample assets to pay the judgment, and had at the time of his examination in cash the sum of $1,000. Thereupon, in February, 1897, upon application to Mr. Justice Beekman, at Special Term, an order was made requiring him to pay the sum of $700i to satisfy the judgment and the supplemental costs. Upon the debtor’s refusing to pay, an order was made adjudging him in contempt, and from that order he took an appeal to the Appellate- Division and in his notice of appeal inserted a provision that he would also review the first order requiring him to pay the sum of $700. The Appellate Court held (17. App. Div. 581), that the proper practice was to move before the Special Term to vacate the original order and, therefore, did not entertain his appeal. Thereupon, the debtor makes this motion to vacate such order, and also the order punishing him for contempt, and the judgment creditor responds by noticing a motion for the same time and place to dismiss such motion made by the debtor on the ground of laches.
    Louis A. Noble, for Van Hess.
    A. Edward Woodruff, in person.
   Russell, J.

The motion to vacate the motion cannot be' entertained or granted. All the reasons for opposition can. be as. "well heard in resistance to the application; and the notice of motion, whether by order to show cause or "a notice signed by attorney, is not a writ or process which can be vacated or quashed upon an independent motion therefor. People v. Railroad Co., 28 Hun, 543, and cases cited in the opinion.

The motion to set aside the order to pay and the order .punishing for.contempt cannot be granted. Under the decision of the Appellate 'Division upon the appeal taken to review such" orders, however, it was held that the proper practice was to move to vacate the orders. In re Van Ness, 17 App. Div. 581.

Therefore, the motion is properly noticed for Special Term. Strenuous objection is made against this motion on the ground of laches. They are not so serious, in view of the effort of the debtor since the original order was granted1 to obtain a review, as to deny his standing in court at this time in the only method pointed out for him to set aside an order requiring him to pay $700 and another order adjudging him.in contempt for not doing so. Therefore, the application is heard upon the merits.

That application, however, presents pretty nearly an abstract question. The validity of the execution and the order adjudging the indebtedness has passed beyond the domain of controversy by the former action of the courts. ' The only question now apparent is whether the order to pay was properly made. The supplemental examination-discloses that the judgment debtor had ample means to pay. He boldly conceded .under oath his- ability to pay and the possession of ample assets.- He had the sum of $1,000 in his possession at" the time of the examination. With a conceded indebtedness adjudged, of record, and an .execution against him, no substantial reason was presented by him why the indebtedness should not be paid. So far as it appears some legal process could readily reach it, -and the only objection is as to the particular form of that process. The objection to the order, therefore, is more theoretic than meritorious. I am also satisfied that upon the evidence, the order was properly made. On the examination, the judgment debtor volunteered the statement “ I have here with me upwards of $1,000 in cash * * . *. Q. Is this $1,000 that, you have in your possession absolutely your own and at your disposal? A. It is.” It was, therefore, apparent to the learned justice who granted the order that here was $1,000 belonging to the judgment debtor which was free money and which ought to be applied in satisfaction of the execution. Assuming, for the sake of the argument, that, where it appears that the money in the possession of the debtor has been earned by him since the service of the original supplemental order, the judge has no power to apply it under the provisions of the Code .in satisfaction of the claim, he still has the right to draw the proper inferences from the possession of a large sum of money, and, in reaching his judicial conclusion, may very properly infer that the sum' of $1,000 was the proceeds of property or services, sold -or rendered, prior to the recent supplemental order- and did not arise out of earnings within a short period, and perhaps especially so in a case of a lawyer. Hence the evidence did not show the exception to the rule that earnings subsequent to the date of the supplemental order cannot be applied in satisfaction of execution, and, in such a case as this, in view of the amount and attendant' circumstances, I think it should have, affirmatively appeared to have been so earned within the recent period, in order to allow the debtor' to avail himself of the exemption. Additional force for this consideration is afforded by the fact that the evidence as to the possession, of. the money came from the debtor himself, who. had 'peculiarly the means of knowledge when it was obtained and so would have brought himself within the privilege, of exclusion if he could, and had so desired, the motion to "vacate the orders, therefore, is denied, with costs.

Motion denied, with costs.  