78 N.Y.S. 546 | N.Y. App. Div. | 1902
In Furnace Co. v. Shepard, 2 Hill, 413, it was held that, though the statute required the service of a copy, the true test was whether the defendant could have been misled by the variance between the. original and the paper served upon him as a copy. I have not discovered that such rule has since been abandoned or changed. There was nothing in the copy, as served, misleading. The affidavit «pon which the order to appear and answer before the referee was granted was confessedly sufficient, and an application to vacate that order because of such a variance would have been denied. Barrington v. Watkins, 36 App. Div. 31, 55 N. Y. Supp. 97. This application is substantially to the same effect, and the court below was correct in denying it.
As to the question whether the $44 received for milk sold by the judgment debtor during the month ending September 15th was exempt, I am of the opinion that the court below erred in its decision. Evidently the milk was produced from the cows kept upon the farm, but the only evidence upon that subject is the testimony of the defendant that he took his milk to the condensery, and at the middle of each month received a check for the same, and that this $44 was the amount of the September check; also his further statement that it was “the proceeds of labor from his farm.” How much assistance lie had in working his farm, does not appear. Whether he himself did a particle of work in the dairy does not appear. The case seems barren of proof that this money was the result of his personal services, and for that reason, without discussing whether it could be considered as his earnings for personal services, within the meaning of section 2463 of the Code, had it been produced by his labor alone, the claim that it was exempt cannot be sustained. But even if it be conceded that the defendant alone had done the work of the farm, I am' of the opinion that this money could hardly be considered as having been received as earnings for his personal services rendered within the last 60 days. It was, rather, the proceeds of a business carried on by him, and within the authority of Prince v. Brett, 21 App. Div. 190, 47 N. Y. Supp. 402, than within the principle of the cases cited by the defendant’s counsel. However, without deciding this last proposition, the order of the county court upon this question must be reversed for the reason first above given.
So much of the order as is appealed from by Wyman, the judgment debtor, is affirmed, with $10 costs and disbursements against him. So much of the order as is appealed from by Canfield, the judgment -creditor, is reversed, with $10 costs and disbursements in his favor, and his application which was denied below is granted. All concur.
