1 Abb. N. Cas. 30 | N.Y. Sup. Ct. | 1876
In the previous action between these parties, the general term sustained the order refusing the injunction,
The case, as now presented, is distinguishable from
In this respect, the pleader in the present complaint not only accepts Judge Weight’s suggestions, but he directly follows Graff v. Bonnett, 31 N. Y. 9, 15, where Hogeboom, J., remarks,—“If the interest of the debtor in this property is only subject to the claims of his creditors in a particular contingency, and then only to a limited extent, to wit, on the report of a surplus over and above an amount necessary or proper for his maintenance and support, we cannot infer that such surplus existed, and it was the office and duty of the pleader, by proper averments, to present such fact in the complaint.’’
The present case is distinguishable, too, from Hann v. Van Voorhis (5 Hun, 12 N. Y. Supreme Ct. 425),
While the trustees are silent on this subject, the defendant, Miller, is seemingly evasive. At all events, his denial is not distinct and specific. The averment is, that “there is a surplus in the hands of the executors and trustees belonging to said [ plaintiff's husband], and which he is entitled to receive, of not less than two thousand dollars.”
But even if he had met the averment squarely, the injunction would not be dissolved because the beneficiary, without furnishing the court with facts or figures, believes his wants to be in excess of the accumulation, and thus feels himself justified in formally denying that in a legal sense, and as he understands it, a surplus exists.
Under such circumstances, the injunction should be retained until the issue on that head can be properly tried.
These views are based upon the treatment of the plaintiff as an ordinary judgment creditor. Whether that is her just position before the court, is certainly a question which is worthy of consideration.
Her judgment is not at law, but in equity, and it is a judgment by which a faithless husband is required to make provision for the maintenance of his children, as well as for the woman he has wronged. Are his children to be treated as judgment creditors also % A rule under the protection of which such a defendant might enjoy the income of one million of dollars quite as securely as the income derivable from the fund in question, while his children of tender years, and former wife, are suffered to want for the necessaries of life, does not seem to have been contemplated by any of the cases, and as an original question, the court should refuse to sanction such injustice, until admonished by an appellate tribunal, that there is no distinction between such an equity judgment and that obtained at law by an ordinary contract creditor.
7 Hun, 208; See also Baldwin v. Ryan, 3 Supm. Ct. (T. & C.) 251; Payne v. Sheldon, 63 Barb. 169; Sweey v. Sheridan, 37 Super. Ct.
Reported in 15 Abb Pr. N. S. 79.