28 N.Y.S. 377 | N.Y. Sup. Ct. | 1894
The substantial parties to this action are residents and citizens of this state, and bound by its laws and the judgments of its courts, and have appeared generally in this action, and are subject to the jurisdiction of the courts.
In an action for divorce between the plaintiff and the defendant W. B. Wetmore, both parties appearing in the action, this court has granted to the plaintiff a divorce, and has, by its judgment in such action, directed the said .defendant to pay the sum of $6,000 a year alimony for. the support of the plaintiff and the children of the marriage, and that judgment was duly served upon the said defendant within this state.
There is no contention but what that decree was in all respects regular, nor is it alleged that it is not binding upon the defendant William B. Wetmore, nor is any fact alleged tending in the slightest degree to show that the enforcement of that judgment is inequitable. Said defendant, however, has, since the service of the judgment upon him, withdrawn from the jurisdiction of the court, so that it is impossible to enforce the decree as against him by any of the remedies provided for in the Code of Procedure. It further appears that there is in this state a trust fund created by the will of this defendant’s father, whereby he is entitled to receive the income of such trust fund, and a sum of money representing such income since the commencement of this action, which it is conceded is the property of this defendant W. B. Wetmore, is now in court subject to the judgment of the court, and the defendants now claim that this court has no power by its judgment to provide that this sum of money, the property of this defendant, should be applied to the payment of this judgment for alimony, and the court has no power to provide that
The principle invoked by the defendant, that the jurisdiction of the courts of this state in actions for divorce is limited by the provisions of the Code, and that the court has no power to grant any judgment in such an action except that expressly provided by the Code, does not apply to the question here presented. This is not an action for divorce. That action has already been disposed of by the judgment that the plaintiff here seeks to enforce, and that judgment it is conceded is in all respects valid and in strict conformity with the provisions of the Code. By that judgment the court had directed the defendant William B. Wetmore to pay the plaintiff a sum of money. The question now is as to the power of the court to enforce this valid judgment, and for that purpose the plaintiff applies to this court of equity to exercise its general equity jurisdiction, and the decision of this case depends not upon the power of the court to grant a judgment in a divorce case, but upon the general power of a court of equity to enforce its own judgment.
It is a principle at the foundation of the jurisdiction of a court of equity, that its decrees are framed to meet the facts of each particular case, so that where a plaintiff asks for the enforcement of a right which equity has jurisdiction to enforce, it adapts its decree or judgment to such form as will give the relief to which the plaintiff is entitled. Thus, Judge Stoey, after speaking of the limitations of a court of common law, says: “ But courts of equity are not so restrained.
Thus, in the case of National Tradesman's Bank v. Wetmore, 124 N. Y. 248, it was held that the return of an execution unsatisfied was not necessary where the situation was such as to render impossible the issuance of such execution, and it seems to me that the principle established in that case is a direct authority which justifies the granting of the relief here sought. That action was brought to set aside as fraudulent a deed from one Abner 0. Wetmore, through a third person, to his wife, by a creditor of said Wetmore. The trial court found that the conveyance was made by Wetmore after his-indebtedness to the plaintiff accrued, and was made without consideration, and with intent to defraud his creditors. Wet-more subsequently died, and the referee found that at the time of his death he had no title to any property, real or personal,, in the state of New York. JSTo judgment had been obtained against Wetmore or his estate, and no execution had been returned. The court held that the case was not within the-contemplation of the statute relating to creditors’ actions; that the support of the action was dependent upon the “ coim mon-law power ” of the court of equity; that the rule that-
Look for a moment at the situation presented here. The judgment of this court provides that this defendant William B. Wetmore should pay to the plaintiff a sum of money each year. William B. Wetmore is entitled to receive for his own use a sum of money from the defendant trustee. He has left the jurisdiction of the court, refuses to obey its judgment, and in consequence of such absence the ordinary remedy provided for the enforcement of that judgment is impracticable. W e have thus the obligation of the defendant William B. Wet-more to pay to the plaintiff this sum of money. We also have an equitable obligation of the defendant trustee to pay to the defendant William B. Wetmore the income of this trust fund as it accrues. In consequence of the voluntary act of the defendant William B. Wetmore in leaving this state, it is impossible to proceed against him by the ordinary methods used to enforce the judgment in the action for divorce. If he were present and subject to the jurisdiction of this court, there can be no doubt that the court, by a commitment
In the case of Miller v. Miller, 1 Abb. N. C. 30, Mr. Justice Babbett clearly intimates that, in his opinion, a court of equity has power to enforce such a judgment, not treating the wife sand children as mere judgment creditors. And in his opinion I fully concur.
The fact that the fund, the income of which is sought to be reached by this action, is held by a trustee, and that it is to a court of equity that any one seeking to enforce a trust must resort, gives to the court, as the only tribunal that can enforce this judgment, jurisdiction. The court is not asked to interfere in any way with the trust or to do any act that would tend to destroy it. It does not anticipate the income from the trust fund, but simply takes hold of the interest of the defendant W. B. Wetmore as it accrues, and provides that that interest shall be applied to the payment of the obligation of said Wetmore as long as he refuses to comply with the judgment of the court. I think, therefore, that the plaintiff is entitled to a decree adjudging that the accrued income in the hands of the trustee be applied tp the payment of the .amount due to the plaintiff from William B. Wetmore under the judgment
Decreed accordingly.