Miller v. Hooper , 26 N.Y. Sup. Ct. 394 ( 1879 )

Brady, J.:

The defendant is the proprietor of a school, and his terms-require the payment quarterly, in advance, of the sums demanded for the instruction to be given. He has no other source of revenue, and depends entirely upon the profit of this business to support himself and his family. The product appears to be-about $1,200, and it appears that his family consists of himself, wife and five children.

The receiver, who was appointed, sought to recover from the debtors of the defendant the sums due in advance for the quarter which had not expired, and which, indeed, had just begun. The effect of this, if sanctioned, would be to prevent the continuance of the business, and to deprive the defendant of a livelihood. He might be able to borrow, but it must be without giving any security, and this, it is fair to presume, he would not succeed well in accomplishing.

His earnings, therefore, for the sixty days preceding the application for the order supplementary herein, being necessary for the support of his family, were exempt, and should be protected.

The service for which the moneys are paid to him are, in effect, paid each day during the quarter ; the money to carry out this theory being in his hands. If it were payable at the expiration of the quarter, it is quite clear on the evidence herein, that, under the statute, his earnings for the prior sixty days would be exempt.

I think, for these reasons, that the court below erred, and that the motion made should have been granted.

The order should, therefore be reversed, with ten dollars costs, .and the disbursements of the appeal to be deducted from the judgment.

Davis, P. J., and Ingalls, J. :

The exemption, for the benefit of the debtor, to enable him to 'support his family out of his earnings, should be liberally construed in favor of the debtor. It is a humane provision. I concur in the opinion of my brother Brady.

Order reversed, with ten dollars costs, and the disbursements of the appeal, to be deducted from the judgment.