
    William F. Kasting Company, Respondent, v. Alfred E. Whittle, Appellant.
    Third Department,
    June 30, 1916.
    Judgment — execution — garnishment —when wages insufficient to justify garnishee execution.
    Where an order directing that an execution issue against defendant’s earnings was granted on an affidavit of one of plaintiff’s attorneys, stating that the earnings of the defendant were forty-seven dollars and fifty cents per month, together with the rent of a house of the reasonable rental value of twenty dollars per month, and a motion to modify or vacate said order was supported by the affidavits of the defendant and his son, from which it appears that under an agreement between the defendant’s brother and the defendant’s employer the latter built a house upon a lot of the former which was to be occupied by a maiden sister of the defendant, who was upwards of sixty years of age and was without means of support, and that the defendant should reside in the house with her and furnish her with food, fuel and lights, and should receive from his employer forty-nine dollars per month for his services, and no answering affidavits were presented upon the motion to vacate, although the defendant had been examined in proceedings supplementary to execution, said motion should have been granted.
    
      Wages of forty-nine dollars per month for fifty-two weeks of the year do not constitute sufficient earnings to warrant issuing a garnishee execution, and the whole rental value of the house of twenty dollars per month cannot properly he included as part of the earnings of the defendant. The word “earnings” is a more comprehensive term than the word “wages.”
    Appeal by the defendant, Alfred E. Whittle, from an order of the County Court of Albany county, entered in the office of the clerk of said county on the 25th day of March, 1916.
    
      Walter E. Ward, for the appellant.
    
      Arnold, Bender & Hinman [Boland Ford of counsel], for the respondent.
   Lyon, J.:

The question involved upon this appeal is whether the earnings of the defendant are subject to a garnishee execution under section 1391 of the Code of Civil Procedure as being to the amount of or in excess of twelve dollars per week.

The order appealed from denied defendant’s motion to modify or vacate an order, granted, without notice, directing that an execution issue against defendant’s earnings to the amount of one dollar and sixty-eight cents per week. The affidavit of one of plaintiff’s attorneys, upon which the order that an execution issue was granted, stated that the earnings of defendant were forty-seven dollars and fifty cents per month, together with the rent of a house of concededly the reasonable rental value of twenty dollars per month. The motion to modify or vacate was supported by the affidavits of the defendant and of his employer, who is his son.. By these affidavits it appears that under an agreement between the defendant’s brother and the defendant’s employer the latter built a house upon the lot of the former which was to be occupied by a maiden sister of defendant, who was upwards of sixty years of age and was without means of support, and that the defendant should reside in the house with her and furnish her with food, fuel and lights, and should receive from his said employer forty-nine dollars per month for his services as superintendent of his son’s greenhouses. No answering affidavits were presented upon the motion to vacate, although the defendant had been examined in proceedings supplementary to execution. I think that upon the facts as presented the motion to vacate should have been granted.

Ooncededly wages of forty-nine dollars per month for fifty-two weeks of the year do not constitute sufficient earnings to warrant issuing a garnishee execution, and clearly the whole rental value of the house of twenty dollars per month cannot properly be included as part of the earnings of the defendant. It is not claimed that the defendant had theretofore been placed under any legal obligation to support his sister. Whether the value of the right given to the defendant to live in' the house with his sister, which must be considered not a mere gratuity but as part of defendant’s earnings, exceeds the reasonable value of the fuel, lights and food necessarily furnished by him to her, does not appear. If it does exceed it, then I think the surplus constitutes earnings which should be added to the wages of forty-nine dollars per month, and upon the total the right to a garnishee execution should be determined. The only statement bearing upon the subject is found in the affidavit of the son to the effect that the forty-nine dollars wages is actually necessary for the living expenses of the defendant and his sister. The word earnings ” is a more comprehensive term than the word “ wages. ” Its signification is sufficiently extensive to include not only the monthly wages paid the defendant but also the pecuniary benefit to the defendant resulting from the agreement relative to the maintenance of the sister and the right of the defendant to live in the house free of charge.

The order appealed from should be reversed and the order directing that an execution issue vacated.

All concurred.

Order reversed, with costs, and order directing that execution issue vacated.  