HOUGH, .Circuit Judge.
The only proceeding intended to be affected by this motion is an outstanding execution (or rather the’proceeds thereof) issued under section 1391 of the Code of Civil Procedure against the wages of the bankrupt herein, who is now and long has been a policeman of this city.
*654* It appears that on October 6, 1913, a judgment was obtained against Beck in the Municipal Court for the sum of $86.86. . On October 21, 1913, an ordinary execution was returned unsatisfied, and thereupon another execution was issued under the section of the Code above alluded to. Ever since that time the cjty paymaster has retained the proper proportion of Beck’s wages, until he has in hand the sum of $101.34.
[1, 2] On February 16, 1915, Beck filed a petition in voluntary bankruptcy, and was at once adjudicated. The question submitted is, To whom does the money now in the hands of the city paymaster belong? Clearly no one but the trustee in bankruptcy can claim anything as against Bauer, the judgment creditor, and that trustee can claim nothing back of the four months period which began October 16, 1914.
[3] The action was at law. There was no equitable lien arising in favor of the judgment creditor, wherefore Bauer’s claim is not within the doctrine of Metcalf v. Barker, 187 U.S. 165" court="SCOTUS" date_filed="1902-12-01" href="https://app.midpage.ai/document/metcalf-v-barker-95720?utm_source=webapp" opinion_id="95720">187 U. S. 165, 23 Sup. Ct. 67, 47 L. Ed. 122" court="SCOTUS" date_filed="1902-12-01" href="https://app.midpage.ai/document/metcalf-v-barker-95720?utm_source=webapp" opinion_id="95720">47 L. Ed. 122.
The moment any wages or salary became due to Beck, -the execution applied to the proper proportion thereof. Whatever was retained by the city paymaster down to October 16, 1914, is clearly applicable to the payment of Bauers judgment.
[4] What was retained after October 16, 1914, was just so much money practically in the hands of the sheriff under a levy made within the four months period, for there could be no levy upon Beck’s salary until there was a salary to levy upon. Therefore the date of levy is coincident with the date of accruing wage. To such a situation Clarke v. Larremore, 188 U.S. 486" court="SCOTUS" date_filed="1902-10-20" href="https://app.midpage.ai/document/clarke-v-larremore-95795?utm_source=webapp" opinion_id="95795">188 U. S. 486, 23 Sup. Ct. 363, 47 L. Ed. 555" court="SCOTUS" date_filed="1903-02-23" href="https://app.midpage.ai/document/clarke-v-larremore-2421178?utm_source=webapp" opinion_id="2421178">47 L. Ed. 555, applies, and the trustee in bankruptcy is entitled to whatever the city paymaster has in his hand and retained from Beck’s wages between October 16, 1914, and February 16, 1915.
[5] Beck has not yet obtained a discharge, nor does it appear whether he has applied for one; therefore until he is discharged, or his right to apply for a discharge has expired, the doctrine of In re Van Buren (D. C.) 164 F. 883" court="S.D.N.Y." date_filed="1908-11-05" href="https://app.midpage.ai/document/in-re-van-buren-8768737?utm_source=webapp" opinion_id="8768737">164 Fed. 883, applies, and the city paymaster must continue to retain enough of Beck’s still accruing salary, and retain it for the benefit of Bauer or of Beck as the case may be. That is, if Beck gets a' discharge, the debt is wiped out, and if he does not get a discharge, Bauer’s judgment may be satisfied out of wages earned after adjudication as well as before the four months period. Of course under no circumstances can the trustee claim anything accruing after adjudication.
The stay order will therefore be lifted to the extent of authorizing the judgment creditor and the sheriff to obtain and pay over whatever was retained by the city paymaster prior to October 16, 1914. The trustee is instructed to demand the amount retained between October 16, 1914, and February 16, 1915. This will leave a deficiency upon Bauer’s judgment, and the retention of wages must still continue until it appears whether Beck gets his discharge or not.
Settle order on notice.
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