Swenk v. Wyckoff

• Decision Date: 26 July 1890
• Citation: 46 N.J.E. 560,20 A. 259
• Parties: SWENK v. WYCKOFF.
• Court: New Jersey Supreme Court

20 A. 259

46 N.J.E. 560

SWENK

v. WYCKOFF.

Court of Errors and Appeals of New Jersey.

July 26, 1890.

Appeal from court of chancery.

Gilbert Collins, for appellant. Frank Bergen, for appellee.

REED, J. The right of the appellee, who was the complainant below, to the relief for which she prays, rests upon an assignment made to her husband by the defendant. The subject-matter which the assignment was supposed to operate upon was the unearned pay of the defendant, to become due to him as a retired officer of the United States army.

In the consideration of the cause we meet at the outset a difficulty which lies at the root of the complainant's case. It exists in the shape of an objection interposed by the defendant that this assignment purports to transfer a chose in action belonging to a class which are not assignable, or what in effect produces the same result, the assignment of which the courts will not enforce or recognize. The rule is established in the English courts that the unearned salary or emolument of an officer which may become payable during his life is incapable of assignment. This restriction upon the general power to dispose of rights having a potential existence is put upon the ground that the recognition of such assignments would operate prejudicially upon the public service. The considerations which led to this judicial result were in substance the following: It was apparent that the salary or remuneration incident to a public office, as a rule, was essential to a decent and comfortable support of the incumbent. If the officer should be deprived of this support, there would arise a hazard of his being driven to an inappropriate meanness of living, of his being harassed by the worry of straightened circumstances, and tempted to engage in unofficial labor, and of the likelihood of his falling off in that official interest and vigilance which the expectation of pay keeps alive. It was because of these probable consequences that the courts refused to countenance any act or proceeding which might result in stripping the officer of his anticipated reward. The cases in which this question has been mooted, and the foregoing rule established, in the English courts, are the following: Flarty v. Odium, 3 Term R. 681; Barwick v. Reed, 1 H. Bl. 627; Arbuckle v. Cowtan, 3 Bos. & P. 328; Davis v. Marlborough, 1 Swanst. 79; Lidderdale v. Montrose, 4 Term R. 248; Stone v. Lidderdale, 2 Anstr. 533; Wells v. Foster, 8 Mees. & W. 149; Palmer v. Bate, 2 Brod. & B. 673. In the case of Flarty v. Odlum, 3 Term R.681, it was held by the court of king's bench that this rule was applicable to the assignment of half-pay by an officer of the British army. It was ruled that future accruing payments did not pass to an assignee appointed under proceedings against an insolvent officer taken for the benefit of his creditors. Afterwards, in the case of Lidderdale v. Duke of Montrose, 4 Term R. 249, the validity of a voluntary assignment of the half-pay of an officer came before the same court, and it was held that there was no distinction to be made between a voluntary assignment and an assignment, as in the last-mentioned case, under the insolvent debtor's act, and so the voluntary assignment was also held to be void. The same dispute, under the name of Stone v. Lidderdale, was shifted into the court of exchequer, and by that court it was remarked that half-pay was granted for the purpose of keeping experienced officers in such a situation as not to be compelled to turn themselves to other pursuits, or to be by other circumstances reduced to extreme poverty. The assignment was therefore held to be void. 2 Anstr. 533. Since the decision of these causes the nullity of an assignment of unearned half-pay by an officer has been repeatedly recognized. The remarks of Lord ALVANLEY in Arbuckle v. Cowtan, supra, and of Baron PARKE in Wells v. Foster, supra, display an understanding in the English courts that by the case of Flarty v. Odium this question had been definitely set at rest.

In this country there are two cases in which the assignment of...