
    Matter of Supplementary Proceedings of Octavia A. Moss, Judgment Creditor, v. John L. Lightfine, Judgment Debtor, Respondent, George William Clune, Receiver and Appellant.
    (Supreme Court, Appellate Term,
    July, 1908.)
    Chattel mortgages — Title and ownership—After default — Where mortgage provides for payment of surplus to mortgagor.
    Exemptions — Enforcement and protection of right to exemption— Necessity of claim.
    Supplementary proceedings — Disobedience to order or subpoena as contempt—Failure to comply with order for payment or delivery of property — Waiver of exemption by failure to claim it.
    Where a chattel mortgage provides for the rendition of any surplus arising upon the sale of the chattels to the mortgagor, the mortgagee, upon default, does not become the sole, absolute and unconditional owner of the mortgaged chattels, but the mortgagor still has a leviable interest subject to the claim of the mortgage.
    Two trucks and a horse belonging to a judgment debtor are not absolutely but only qualifiedly exempt from execution; and, where, in supplementary proceedings, the judgment debtor makes no claim of exemption at the time they are demanded of him by the judgment creditor under an order directing their delivery to be applied to the payment of the judgment, upon the judgment debtor’s refusal to deliver them he will be punished for disobedience to the order.
    Appeal by the receiver from an order of the City Court of the city of Mew York denying a motion to punish the judgment debtor for contempt.
    May & Jacobson (I. N. Jacobson, of counsel), for appellant.
    Robert Lyon, for respondent.
   MacLean, J.

It appears that the receiver of the judgment creditor herein, pursuant to order, demanded of the debtor the surrender of all property in his possession, particularly two trucks and one horse referred to and mentioned by the debtor in his examination in this proceeding, and that the debtor refused to comply with the demand. Thereafter the receiver moved to punish him for contempt, but his motion was improperly denied. The record discloses no claim to exemption of the property at the time of the demand or even upon the hearing to punish for contempt. This was necessary, as the property in question was not absolutely, but only qualifiedly, exempt. Wilcox v. Howe, 59 Hun, 268. At that hearing the debtor deposed a disclaimer of ownership and was corroborated by the exhibition of a chattel mortgage that had been filed against the property in question on or about the 24th of October, 1907. The affidavit of the mortgagee disclosed that the mortgage was past due; but that did not make him the sole, absolute, and unconditional owner, for the mortgage provides for the rendition of any surplus arising upon the sale to the debtor herein, who, therefore, may be said to have had a leviable interest subject to the claim of said mortgage.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted.

Gildersleeve and Seabury, JJ., concur.

Order reversed, with fen dollars costs and disbursements, and motion granted.  