
    Lemuel S. Bunnell, Respondent, v. Richard H. Gardner, Appellant, Impleaded with Others.
    
      Judgment creditor — action to reach the surplus income of a trust—it must be shown by the plaintiff that the debtor has a surplus income.
    
    In an action brought by a judgment creditor of the defendant, Richard H. Gardner, to reach the surplus income of a trust fund created for his benefit by a will, in which the court found that §300 was sufficient for the support of the judgment debtor, it appeared that at one time; some five years previous, the defendant had been employed at the rate of fifteen dollars a week, but that during the last five years he had been conducting a laundry which was not a flourishing business; that his wife was in poor health; that he had an invalid son dependent upon him; that his father had helped him; that his wife owned a house renting for forty dollars a month, which was mortgaged for §3,000, and on which the. taxes were not paid."
    
      Held, that the burden rested upon the plaintiffs to show that there a surplus of income;
    That there was not enough evidence in this case to enable the court fairly to say .what amount should be allowed for the support of the debtor and those dependent upon him.
    Appeal by the defendant, Richard H. Gardner, from a judgment of the Supreme Court in favor of the plaintiff; entered in the office of the clerk of the county of Rensselaer on the 28th day of September, 1895, upon the decision of the court rendered after a trial, at which certain questions had been submitted to the jury, before the court and a jury, at the Rensselaer Circuit.
    This action was brought by a judgment creditor of the defendant, Richard H. Gardner, to reach the surplus income of a trust fund after providing for the support of the judgment debtor. The fund was created by the will of Jefferson Gardner, deceased, and by the judgment appealed from the trustees are directed to pay over to the plaintiff, in extinction of his judgment, so much of the annual income willed to the judgment debtor as shall be in excess of the sum of $300, which was the sum found to be necessary for the support and maintenance of the judgment debtor under his present circumstances.
    
      William W. Morrill, for the appellant.
    
      Ward & Cameron, for the respondent.
   Per Curiam :

It is not clear that the evidence sustains the finding that only $300 a year out of the income of the trust fund is necessary "for the support of the debtor and those dependent upon him.

The decree refers only to future income, and, therefore, the point is, what sum should be fixed as the situation appeared at the time of the trial in Hay, 1895.

If the earnings of the debtor may be considered (see Moulton v. de ma Carty, 6 Robt. 533), it does not appear what they were at the time of the trial. In December, 1890, he was in the employ of Gardner & Tail of New York city, at fifteen dollars a week. He left them, and for five years has been running a laundry in Brooklyn. How much he gets out of that does not appear. It is not, according to the evidence,, a flourishing business.

" His wife is in poor health; ind he has an invalid son, dependent upon him. It is not shown how much it costs them to live, or how much ordinarily it costs people in their situation to live. He and his wife seem to have had the income up to the time of the trial and were asking for more. His father had been accustomed to help him, but to what extent does not appear.

The wife owned a house that rented for forty dollars a month. On this was a mortgage of $3,000. They don’t keep up the taxes on the house.

The maimer in which the debtor lias been accustomed to live is an element. (Rapallo, J., in Williams v. Thorn, 70 N. Y. 270, 278; Andrews v. Whitney, 82 Hun, 123; Genet v. Beekman, 45 Barb. 382.)

The burden is on plaintiff to show that there is a surplus of income. (Kilroy v. Wood, 42 Hun, 636.) In that case the complaint was dismissed for lack of evidence to show what would be a proper amount to allow the beneficiary for his support.

In Tolles v. Wood (16 Abb. N. C. 1, 13) Huger, Ch. J., seems to have been of the opinion that, aside from proof as to the actual cost of living to a party,, the best, if not the only competent proof to be ' given on the subject, was evidence as to the amount and cost of the various items going to make up the expense of living in the locality of the debtor to a person in his position. The opinion of Judge Huger was concurred in by Judge Karl, but the question was not considered by the other judges.

It seems to us that the evidence in this case is not sufficient to enable a court to fairly say what is a proper amount to be allowed to the debtor for the support of himself and those dependent upon him. If not, there should be a reversal.

All concurred.

Judgment reversed, new trial ordered, costs to abide the event.  