Sand v. Beach

• Court: New York Court of Appeals
• Writing for the Court: LEHMAN
• Citation: 200 N.E. 821,270 N.Y. 281
• Parties: SAND v. BEACH.
• Decision Date: 03 March 1936

270 N.Y. 281
200 N.E. 821

SAND
v.
BEACH.

Court of Appeals of New York.

March 3, 1936.

Action by Joseph H. Sand against Stanley Y. Beach. In the matter of proceedings supplementary to execution. Application by plaintiff as judgment creditor for an order directing that an execution issue against the income of defendant, the judgment debtor, from a trust fund. The Special Term order granted the motion to the extent of directing that a garnishee execution issue against 10 per cent. of said income in excess of $12 per week as should be paid by the trustee to the defendant-respondent, but denied the motion in regard to any income paid by the trustee to the wife of the defendant-respondent or to any other person for the comfortable support and maintenance of those dependent upon the defendant-respondent, and provided that, should the trustee decide not to pay such income to the defendant-respondent, then a garnishee execution should not issue against moneys not paid directly to the defendant-respondent or for his support. From an order of the Appellate Division (244 App.Div. 784, 280 N.Y.S. 789), which affirmed an order of Special Term, plaintiff appeals.

Orders modified and affirmed, and motion for execution granted.

[270 N.Y. 281]Appeal from Supreme Court, Appellate Division, First department.
[270 N.Y. 282]Joseph H. Sand and William W. Lesselbaum, both of New York City, for appellant.

Randolph W. Till, of New York City, for Edward M. Meek, as trustee for Stanley Y. Beach, respondent.

LEHMAN, Judge.

The appellant is a judgment creditor of Stanley Y. Beach. The judgment debtor is

[200 N.E. 822]

a beneficiary of a trust created by the will of his aunt, Jennie Beach Gasper, deceased. The judgment creditor has applied to the court for an order directing that an execution [270 N.Y. 283]issue against the income of the judgment debtor from the trust fund. The problem presented upon this appeal relates solely to the determination of what income from the trust fund is due and owing or will hereafter become due and owing to the judgment debtor. A percentage of such income may be reached through execution by a judgment creditor. Civil Practice Act, § 684.

Under the will of the testatrix, the trustee appointed therein holds the trust fund ‘for the following uses and purposes, to wit: To receive the rents, income and proceeds thereof and to pay the same either direct and in person to my nephew Stanley Y. Beach, or for the use and benefit of my said nephew and those dependent upon him, during his lifetime, and in the manner and amounts, and at the times and for the purposes that said trustee, or his successor or successors, in his discretion may deem best, but not to any conservator or guardian appointed by a court, and my said nephew shall not have the right or power to assign or transfer the same, or any part of the same without the consent, in writing, of said trustee, his successor or successors, until it shall have actually reached my said nephew's own hands; nor shall any creditor or other person have the right or power to subject the same by legal or equitable process, or in any way without the consent in writing of said trustee, his successor or successors.’

It is clear that the testatrix intended to provide for the support of her spendthrift nephew and those dependent upon him and to make the interest of her nephew in that fund exempt from execution or other process by which otherwise such interest or...