
    Marie Kroner, Judgment Creditor, Respondent, v. John F. Reilly, Judgment Debtor, Appellant.
    
      Supplementary proceedings—a salary partly ea/rned and not yet due ca/nnot be reached thereby—suit therefor against a receiver without leave—an order, adjudging the plaintiff to be in contempt, reversed.
    
    The monthly salary of a judgment debtor cannot be reached by proceedings supplementary.to execution, instituted after it has been partly earned, but before it has become payable.
    Where such salary was collected by the receiver in supplementary proceedings, it was considered that an order, adjudging the judgment debtor to be guilty of contempt in commencing, without leave of the court, an action against the receiver individually to recover said salary, should be reversed.
    Appeal by the defendant, judgment debtor, John F. Reilly, First, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings 'on the 31st day of October, 1899, punishing the defendant for contempt, and also from an order entered in said clerk’s office on the 8th day of November, 1899, denying his motion to resettle said order entered October 31, 1899.
    Second, also from so much of an order entered in said clerk’s office on the 9th day of October, 1899, as appoints a receiver of any debts, property, equitable interests or choses in action not ■owned by the judgment debtor at the date of the making of the order for the examination of the said judgment debtor in proceedings sirpplementary to execution, and from so much of said order of October 9, 1899, as orders and directs John H. Timmerman, city paymaster, to pay over upon demand to the receiver appointed by said order the money or check for salary due by the city of New York to the judgment debtor on the 1st day of October, 1899.
    
      Third., also from an order entered in said clerk’s office on the 26th day of October, 1899, confirming the receiver’s report.
    
      Henry J. Furlong [John J. O’Connell with him on the brief], for the appellant.
    
      J. J. Bennett, for the respondent.
   Goodrich, P. J.:

The plaintiff, having recovered a judgment against the defendant in February, 1897, obtained an order for the examination of the judgment debtor in proceedings supplementary to execution on September 11, 1899. The defendant appeared and was sworn on the return day, September fourteenth. The examination was adjourned to the sixteenth, when the defendant testified that he was ■a stenographer in the employ of the city of New York, with a salary of $2,000, payable monthly, and that $166.66 would be due to him on October first; that he was not married, but that the salary was the only means which he had; that it was all necessary to his maintenance, and that he assisted in supporting his mother. The proceeding was then adjourned to the seventh and afterward to the sixteenth of October. On the ninth of October an order was made appointing Mr. Cadmus receiver of the defendant’s property and directing that the city paymaster pay over to the receiver the money ■or check for the September salary, which became due October first. The paymaster paid the salary to the receiver on the tenth of October, and the receiver distributed the money and filed his report. An order was made on October twenty-sixth confirming the report and discharging him from his duties as receiver.

Meantime, and on October nineteenth, the defendant, Reilly, without permission of the court, sued Cadmus, individually, to recover the $166.66. Cadmus, on the next" day, instituted proceedings against the defendant for contempt, and, on the thirty-first, the court adjudged Reilly guilty and fined him $25.

The first question involved in the appeals is whether a receiver appointed in proceedings supplementary to execution can collect the wages of a debtor which are not wholly earned, and not payable, at the time of the institution of the supplementary proceedings. The question was considered by Mr. Justice Freedman, in an exhaustive opinion, in Matter of Trustees of the Board of Publication & Sabbath School Work (22 Misc. Rep. 645), in which he decided that the statute limits the power of the court to existing rights and things in esse at the commencement of the proceedings, and that no property subsequently acquired, and no future earnings for personal services rendered within sixty days preceding the order, could be reached, if the same are necessary for the use of the debtor’s family.

It is not necessary for us to decide whether in the present case the debtor had a family, within the meaning of section 2463 of the Oode of Civil Procedure.

In Albright v. Kempton (4 Civ. Proc. Rep. 16) Mr. Justice McAdam held that where an order for the examination was made on July fifth it was not within the power of the court to order that the monthly salary of the debtor, due on July tenth, be applied on the judgment; that this could be done only by proceedings instituted after the salary was payable. There are other decisions to the same effect which it is unnecessary to cite. It follows that so much of the order appointing the receiver as directed him to collect the defendant’s salary and required the city paymaster to pay that salary to the receiver, and the order confirming the latter’s report, should be reversed.

As there was no jurisdiction in the court to make the order directing the payment of the salary to the receiver there was no power to punish the defendant for contempt, because the fine, as stated in the order, was imposed on the ground that the misconduct of the defendant impaired the rights of Cadmus, as receiver. The court, having no power to make the order, it was cormn non judice and without validity, and the receiver obtained no rights thereunder. For disobedience of such an order the defendant cannot be adjudged guilty of contempt. It follows that all of the orders should be reversed.

Hatch, J.:

1 agree with the presiding justice that the order directing the payment over of the monthly salary earned by the defendant cannot be supported, and that the proceedings supplementary to execution could in no event reach such salary. I am, however, unable to agree that the court was without jurisdiction to punish the defendant for contempt in instituting his action against the receiver without first obtaining leave of the court so to do. The court had jurisdiction of the proceeding, and also had jurisdiction to appoint the receiver therein. Such person, then, became the representative of the court; and it has been uniformly held that, before an action is authorized to be instituted against the receiver, leave must first be obtained from the court, and the institution of such action without leave constitutes a contempt of court and may be punished as such. (Taylor v. Baldwin, 14 Abb. Pr. 166; Kent v. West, 16 App. Div. 496 ; Read v. Brayton, 72 Hun, 633 ; Higgins v. Wright, 43 Barb. 461; De Groot v. Jay, 30 id. 483.) The act of bringing suit against the receiver without leave constitutes a civil contempt, as classified in People ex rel. Munsell v. Court of Oyer & Terminer (101 N. Y. 245), and this is true, although the public interests to some extent may be involved. In the present case the question as to whether the court had authority or jurisdiction to make the order directing the payment over of the salary of the defendant is aside of the question involved in the proceeding to punish for contempt. The basis for the infliction of such punishment was the unlawful interference with an officer of the court, and as the court had jurisdiction to appoint the receiver, it also had jurisdiction to protect the receiver. In the latter proceeding the question as to whether the receiver acted under a void order in the performance of his duties, or whether he had the right to retain the property or money in his hands which he had received under an order granted without authority, does not affect the question of whether the receiver could be proceeded against by action without leave of the court being first obtained. It is clear that one condition does not depend upon the other; and if it be assumed that the court was without authority to direct the salary to be paid over, such fact did not excuse the defendant from first obtaining leave of the court to institute an action if he chose to make use of such remedy to repossess himself of the money. It follows, therefore, that the order punishing the defendant for contempt of court in instituting the action does not rest upon the lawfulness or unlawfulness of the order directing the payment of the salary to the receiver. It is quite clear, however, that the order punishing for contempt would not have been made had the court regarded the order directing the payment over of the salary as being without legal authority for its support. For this reason, I think, this order should be reversed, but without costs.

Upon first appeal Bartlett, Woodward and Hirsohberg, JJ., concurred, with Hatch, J. Upon second and third appeals all concurred.

Order reversed, without costs. Order reversed, with ten dollars costs and disbursements. Order reversed, with ten dollars costs and disbursements.  