79 N.Y.S. 122 | N.Y. App. Div. | 1902
Section 2463 of the Code of Civil Procedure provides: “ This article does not * * * authorize the seizure of or other interference with any property * * * or,any money, thing in action, or other property held in trust for a judgment debtor where the trust has been created by or the fund so held in trust has proceeded from a person other than the judgment debtor.” The order appealed from does interfere with property held in trust for the judgment debtor at least to the extent that the income thereon exceeds the necessities of the judgment debtor and his family. It is also left to the trustees to determine at their peril the extent of such necessities.
The interest of a beneficiary in a trust fund created by a person other than the debtor, cannot be reached in supplementary proceedings. It must be reached, if at all, in a direct action. (Levey v. Bull, 47 Hun, 350; Monolithic Drain & Conduit Co. v. Dewsnap, 25 Civ. Proc. Rep. 380.)
All concurred.
Order reversed, with ten dollars costs and disbursements, and order of August 18,1902, amended by adding thereto : “ This order shall not be construed to apply to or enjoin said William S. J. Seymour and Alexander R. Benson, as trustees under the will of Laura S. Hasbrouck, deceased, nor authorize their examination in relation to the trust fund.”