
    Frederick W. Fink et al., App’lts, v. Rudolph Fraenkle, Resp’t.
    
      (City Court of New York, General Term,
    
    
      Filed April 24, 1891.)
    
    Execution—Personal property exempt prom.
    A male judgment debtor has no exempt personal property except such as is mentioned in §§ 1390 and 1391 of Code of Civ. Pro., and his earning-for personal services under § 3463, and these are exempt only when he is a householder or has a family for which he provides. A woman need not be a householder, and her property has the same exemption as a householder.
    Appeal from an order denying motion to punish judgment debtor, a physician, for refusing to deliver to his receiver furniture, books and surgical instruments used in his practice of the-value of about $350.
    
      John B. Pannes, for app’lts; Herman Fox, for resp’t.
   Van Wyck, J.

—The plaintiff issued an execution against the property of defendant which was duly returned unsatisfied, -whereupon he obtained an order in supplementary proceedings for the examination of defendant, and upon his examination the judgment debtor testified that he was a physician in active practice, lived at 115 Second street, was unmarried, had no children, and owned a set of furniture for his waiting room, a set for his bed room, a library of about 200 volumes and his surgical instruments, and that all his furniture was worth about $200, and the surgical instruments about $150, and that the books and office furniture were used by him in his business, and, though he does not so testify, it is to be presumed that he also used the instruments in his business. He made no attempt to show that he was a householder or that he had a family, or any person for which he provided.

At common law, neither a judgment debtor nor his family had any way of exempting any portion of his property from execution for his or their benefit, so that any privileges that he may now have in that direction must be sought for in the statutory law; and in this state the laws which exempt from execution the judgment debtor’s personal property are to be found in the Code of Civil Procedure, § 2463, which exempts his earnings for personal service within sixty days, when “ necessary for the use of a family, wholly or partly supported by his labor,” § 1390, which exempts certain articles of personal property therein enumerated, “ when owned by a householder,” and § 1391, which exempts furniture, professional instruments, library and certain other articles, not exceeding in value $250, “ owned by a person being a householder, or having a family for which he provides.”

The judgment debtor in this case, is left to the necessity of seeking and finding his justification for refusing to deliver his property to his receiver in these three sections of the Code.

Perhaps it would be well to state in passing that when the judgment debtor is a woman she has, by § 1392, the same exemptions as a householder has under §§ 1390 and 1391. The consensus of judicial thought is, that the harsh rule of the common law which stripped judgment debtors of everything except the clothes upon their backs, was mollified by statutory provisions, “ as a protection for poor and destitute familes,” and “ to mitigate the consequences of men’s thoughtlessness and improvidence.’

Judge Selden, in the Crawford case, in the supreme court, 9 How., 548, says: “Although our statutes, exempting certain articles of prime necessity belonging to householders from levy and sale upon execution, were intended for the benefit of the entire family and not of its head alone, still I entertain no doubt that the master of the family may waive the exemption.” However, the court of appeals, in the Kneettle case, 22 N. Y., 249, has held that the householder cannot even waive the right .of exemption, as it is for the benefit of the family for which he provides. In the Kneettle case the execution was issued upon a judgment recovered on a promissory note containing this provision, “and I hereby waive and relinquish all right of exemption of any property I may have from execution on this debt,” and Judge Denio, in that case, writing in support of the contention that the right of exemption cannot be waived, reiterates the oft-repeated construction given to these statutes, as follows: “These exemption laws apply only to householders who have families for which they provide."

All of this judicial reasoning goes to establish that only a householder’s property is exempt; that a householder is the master of a household, and that a household is a family living together, however, not necessarily wife and children, but it must be a family, small or large, for which he provides.

This judgment debtor has not in any way shown himself a householder or a man having a family for which he provides, and hence it follows that he should have been forced to yield up his property to his receiver in order that it might reach his creditor the plaintiff.

The order appealed from must be reversed, with costs.

Ehrlich, Ch. J., concurs.  