Opinion
February 18, 1927.
Appeal from Supreme Court of New York County.
A. Walker Otis of counsel [ Otis Otis, attorneys], for the appellant.
John B. Warner of counsel [ Miller Warner, attorneys], for the respondent.
The order now here denied a motion for sequestration of property of defendant and the appointment of a receiver to collect the alimony awarded in a judgment of separation rendered in favor of plaintiff at the rate of $350 per month which was allowed for the support of plaintiff and her two infant daughters aged now fourteen and nineteen.
The defendant receives an annual income from two trusts under the wills of his parents. The Farmers' Loan and Trust Company is the trustee thereunder. The net income from these trusts is between $7,500 and $8,000 per annum. The defendant has been delinquent in paying alimony since its award. During the early part of 1925 he fell behind from five to sixteen days in monthly payments. During the latter part of 1925 he was thirteen to forty-nine days in default. In 1926 he was one hundred and forty-five days in default in his payments.
The defendant does not appear to have any place for the regular transaction of business in person.
For two years the plaintiff has had at various times to begin proceedings to get the alimony. On two occasions she had to retain counsel to institute contempt proceedings, and on two occasions she has made motions for a receiver. Although defendant paid the accrued alimony while this motion was pending, we think that the right of plaintiff accrued and that at the time of the application this was a proper case for the sequestration of defendant's property, because of his continued delinquencies in prompt payment which remedy he may not avoid by payment under successive proceedings designed for compulsion of obedience, else the effect of the offered remedy would be thwarted. There is proof too that he was not available when process was sought to be served upon him in efforts to compel him to meet the obligations of the judgment.
Defendant's legal opposition to the order was that the sequestration of the trust fund could not be had because the income had not accrued at the time of the receiver's appointment, and that no order can be made for sequestrating property without notice to the defendant.
We decided, however, in effect, in Clark v. Clark ( 218 App. Div. 715), affirming a Special Term decision, that future income may be sequestered and an anticipatory order may be entered appointing a receiver to pay it over. Here the order was made after notice by sending the order to show cause by registered mail to defendant at a house 110 Martense street, Brooklyn, where it was shown he at times resorted. Since the defendant appeared and opposed the motion jurisdiction was obtained to make the direction.
We think that the order should be reversed, with ten dollars costs and disbursements, and the motion to sequester the trust funds and appoint a receiver granted.
DOWLING, P.J., FINCH, MARTIN and O'MALLEY, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion granted. Settle order on notice.