
    In the Matter of the Application of Carrie King and Amos King to Set Aside the Levy of Execution and to Enjoin the Sale Thereunder on Judgment in an Action Entitled “Fulton County Court — Alfred W. Shull, Plaintiff, v. Carrie King and Amos King, Defendants.” Alfred W. Shull, Appellant; Cabbie King and Amos King, Respondents.
    
      Power of the Gounty Gourt over its own execution—its power to determine, upon motion, disputed questions as to whether real property levied, upon thereunder was purchased with pension moneys.
    
    The County Court has no power, upon a motion made hy the defendants in an execution issued out of that court, to determine, on ex ponde affidavits, disputed questions as to whether real property levied upon under such execution was purchased with pension moneys and owned hy a pensioner, his wife or widow, and was thus exempt from levy and sale under execution, and to grant an order setting aside such execution and restraining the sheriff from selling the property in question thereunder, hut should relegate the parties to their remedy hy an ordinary action in which the disputed questions of fact may be determined upon common-law evidence.
    Appeal by Alfred W. Shull from an order of the County Ctiurt of Fulton county, entered in the office of the clerk of the county of Fulton on the 15th day of December, 1897, restraining the sheriff of Fulton county from selling certain real property under an execution issued upon a judgment in favor of the appellant, and setting aside the levy of execution upon the ground that the property levied upon was exempt from levy and sale upon execution, having been purchased with pension money.
    
      Andrew J. Nellis, for the appellant.
    
      Clarence W. Smith, for the respondents.
   Herrick, J.:

No question is raised before us but that real estate purchased with pension money, and owned by a pensioner, his wife or widow, is exempt from levy and sale on execution; the question for determination here is as to whether that exemption can or should be enforced upon motion and by order.

In the case of The Yates County National Bank v. Carpenter (119 N. Y. 550) the execution was stayed by ah order of the County Court in the same manner as has been done in this ease, but in that case there seems to have been no controversy as to the facts, and a pure question of law upon such facts was presented to the court, and no question was raised as to the authority or jurisdiction of the court to make the order staying the execution and setting aside the levy, so that that case is not authority upon the question involved here.

There is no doubt that courts of original jurisdiction have authority to stay executions for the purpose of preventing oppression, or to stop an abuse of the-process of the court, or to stay proceedings to enforce a judgment when the defendant in such judgment has been discharged from the debt or cause of action which resulted in the judgment and execution, particularly when such discharge or release has occurred at too late a period to permit its being pleaded as a defense to the action, as in cases where a debtor has been discharged by bankruptcy or insolvency proceedings. (Cornell v. Dakin, 38 N. Y. 253; Monroe v. Upton, 50 id. 593; Palmer v. Hutchins, 1 Cow. 42.)

Ordinarily, it may be said that a court of original jurisdiction has -control over its own process of whatever nature, which control it will exercise in proper cases; whether that is true, to its full extent, of a court of limited jurisdiction like the County Court, I will not at this time stop to discuss, because it seems to me that, in this particular case, it is unnecessary to decide that question in order to dispose of this appeal. An application to the court to control its process to prevent abuses or oppression, or by a defendant to avail himself of the discharge in bankruptcy or insolvency, has been permitted to be made by motion, but where it is claimed that a wrongful levy has been made, or that a levy has been made upon property not belonging to the defendant in the action, or where controverted questions of title have arisen, the party claiming to be aggrieved has been left to his remedy by action.

An examination of the cases will show that ordinarily exemptions have been enforced by notifying the sheriff that the defendant in the execution claims the property levied upon to be exempt from levy and sale on execution, and that if, notwithstanding such notice and protest, the sheriff proceeded to sell, the party claiming exemption lias resorted to an action for damages because of such wrongful sale, or to an action to restrain the sale, or an action to recover the property. (Griffin v. Sutherland, 14 Barb. 456 ; Twinam v. Swart, 4 Lans. 263; Wilcox v. Howe, 59 Hun, 268; Buffum v. Forster, 77 id. 27.)

The case of Wilcox v. Howe was a case where exemption was claimed under section 1391 of the Code of Civil Procedure, the property being a horse and wagon.

The court held that as to the exemptions contained in section 1390 the. officer has no right to make a levy upon them; that as to the exemptions mentioned in section 1391 the exemption is a qualified one, and that the person desiring it must claim it and notify the officer of his claim. The exemptions set forth in section 1390 are of specific articles named, that the officer can easily determine and identify by inspection.

The exemptions contained in section 1391 need something more than a mere inspection of the articles themselves to determine whether they are exempt or not.

So of real estate purchased by pension money, a mere inspection of the property or of the records will not determine whether it is exempt or not. A person claiming an exemption must prove it. (Griffin v. Sutherland, 14 Barb. 456; Twinam v. Swart, 4 Lans. 263.)

I can see no reason for adopting one rule for enforcing one class of exemptions, and another rule for another class or kind.

The case of Buffum v. Forster was a case where the plaintiff brought an action to enforce a pension exemption. In that case the question was raised that the plaintiff’s remedy was by motion in the original action, and the case of The Y. C. N. Bank v. Carpenter (119 N. Y. 550) was cited as authority to that effect, but the court held that the question was not raised or considered in that case, and held that the plaintiff might resort to an action to obtain the relief he sought; that the judgment recovered against him was an apparent lien upon his real estate; that his right to exemption was dependent upon facts extrinsic of that action, and that, in order to relieve his real estate from the lien of that judgment, he must establish as facts that he was a pensioner, and that the real estate was purchased with his pension money. His claim in this regard may be controverted, and we think lie has the right to have this question tried and determined upon common-law evidence, and that he is not hound to have it disposed of on a motion upon ex parte affidavits.”

If the party claiming the exemption has the right to have the question tried and determined upon common-law evidence, I do not see why the adverse party does not possess the same right. In the case before us, the plaintiff in the execution asserted that right, and, when the motion came on to be heard, challenged and disputed the facts upon which the defendants claimed the exemption; he protested against the court’s determining the question on affidavits presented upon motion, and demanded that the question should be determined by a jury in an action. He also set forth by affidavits facts from which it might be inferred that the defendant Carrie King was not-the wife of the defendant Amos King.

The questions presented, it seems to me, are questions that should not be determined on ex parte affidavits and upon motion; that the plaintiff has the right, as have the defendants, to have the questions of fact presented determined by common-law evidence, and that, therefore, the order appealed from should be reversed, with ten dollars costs and disbursements of this appeal, and the motion denied, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  