Halsted v. Halsted

47 N.Y.S. 649 | N.Y. App. Div. | 1897

Patterson, J.:

The motion for an injunction was properly denied and for the reason that the plaintiff was not in a situation to institute this action, which was evidently brought upon the supposed authority of Wetmore v. Wetmore (149 N. Y. 520). The ground upon which that case proceeded was, that the plaintiff was entitled to maintain a creditor’s action to reach the surplus of the .trust fund in the hands of the trust company, and it appeared that the plaintiff there had exhausted all the remedies given by the Code to obtain payment of the alimony awarded on the final judgment. Assuming, without deciding, that the right to maintain an action of this character would lie upon an award of alimony made by a binding order, still, that right would depend upon the plaintiff having exhausted the ordinary remedies for the enforcement of the order, which was, manifestly, not done-in this case. Sequestration proceedings were not resorted to, and further than that, no execution was issued. The right to issue the execution existed. Section 779 of the Code of Civil Procedure enacts that where a sum of money is directed by an order to be paid, if it is not paid within the time fixed by the order, or within ten days after the service of the order, an execution against the personal property of the party required to pay the same may be issued by any party or person to whom the same is payable by the terms of the order. The plaintiff, therefore, did not exhaust the remedies open to her, and consequently • cannot maintain a creditor’s action.

The order appealed from should be affirmed, with costs.

Van Brunt, P. J., Barrett, Bumsey and Williams, JJ., concurred.

. Order affirmed, with ten dollars costs and disbursements.