In re Beck
| Decision Date | 10 November 1915 |
| Citation | 238 F. 653 |
| Parties | In re BECK. |
| Court | U.S. District Court — Southern District of New York |
Allen & Dean, of New York City, for Bauer, a judgment creditor.
Eugene L. Brisach, of New York City, for bankrupt.
The only proceeding intended to be affected by this motion is an outstanding execution (or rather the proceeds thereof) issued under section 1391 of the Code of Civil Procedure against the wages of the bankrupt herein, who is now and long has been a policeman of this city.
It appears that on October 6, 1913, a judgment was obtained against Beck in the Municipal Court for the sum of $86.86. On October 21, 1913, an ordinary execution was returned unsatisfied, and thereupon another execution was issued under the section of the Code above alluded to. Ever since that time the city paymaster has retained the proper proportion of Beck's wages, until he has in hand the sum of $101.34.
On February 16, 1915, Beck filed a petition in voluntary bankruptcy, and was at once adjudicated. The question submitted is, To whom does the money now in the hands of the city paymaster belong? Clearly no one but the trustee in bankruptcy can claim anything as against Bauer, the judgment creditor, and that trustee can claim nothing back of the four months period which began October 16, 1914.
The action was at law. There was no equitable lien arising in favor of the judgment creditor, wherefore Bauer's claim is not within in the doctrine of Metcalf v. Barker, 187 U.S. 165, 23 Sup.Ct. 67, 47 L.Ed. 122.
The moment any wages or salary became due to Beck, the execution applied to the proper proportion thereof. Whatever was retained by the city paymaster down to October 16, 1914, is clearly applicable to the payment of Bauer's judgment.
What was retained after October 16, 1914, was just so much money practically in the hands of the sheriff under a levy made within the four months period, for there could be no levy upon Beck's salary until there was a salary to levy upon. Therefore the date of levy is coincident with the date of accruing wage. To such a situation Clarke v Larremore, 188 U.S. 486, 23 Sup.Ct. 363, 47 L.Ed. 555 applies, and the trustee in bankruptcy is entitled to whatever the city paymaster has in his hand and retained from Beck's wages between October 16, 1914, and February 16, 1915.
Beck has not yet obtained a discharge, nor does it appear whether he has applied for one; therefore...
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Ableman v. Conoway
... ... unnecessary to consider the circumstance that, at the return ... day of the writ, and for several weeks thereafter, there was ... no trustee for the bankrupt's estate, and consequently no ... one to make demand for the proceeds of the sale. See In ... re Beck, (D. C.) 238 F. 653; In re ... Wodzicki, (D. C.) 238 F. 571 ... The ... petition ... ...
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Riddervold, In re, 884
...earnings of the bankrupt did not. On the former point he reasoned that the execution operated as a "continuing levy". In re Beck, 238 F. 653 (S.D.N.Y.1915), involved a portion of Beck's salary retained by the city paymaster pursuant to an execution under the same statute also long antedatin......
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In re Duffy, 30915.
...More recently trustee's rights to such funds were considered in Re Smith, D.C., 8 F.Supp. 49; In re Wodzicki, D.C., 238 F. 571; In re Beck, D. C., 238 F. 653; and in Friedman v. Gibbons, 101 Misc. 356, 167 N.Y.S. 685. In all of these cases the court has held that a garnishee execution while......
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