#### Brooks Brothers, Respondent, *v.*Eleanor G. Cassebeer, Appellant.

First Department,

July 10, 1913.

Husband and wife — execution under section 1391 of the Code of Civil Procedure against voluntary payments by husband to wife after separation, improper.

An execution under a judgment against a wife for goods, wares and merchandise purchased after a separation from her husband, cannot be directed under section 1391 of the Code of Civil Procedure against voluntary payments by her husband to her for her maintenance and support where no action has been brought to dissolve the marriage, and such payments are voluntary and not made by virtue of any agreement.

Appeal by the defendant, Eleanor G-. Cassebeer, from an order of the Supreme Court, made at the New York Special Term *684and entered in the office of the clerk of the county of New York on the 17th day of March, 1913, denying a motion to set aside an execution.

*Phillips & Avery [C. Royall Frazer*of counsel], for the .appellant.

*Bernard I. Kamen,*for the respondent.

McLaughlin, J.:

The appellant is and for some time has been living separate and apart from her husband and he is voluntarily paying her $150 a month for her maintenance and support. No action has been brought to dissolve the marriage contract, nor is the amount paid her by virtue of any agreement between them. The respondent obtained a judgment against the appellant for. goods, wares and merchandise sold after the separation took place. Execution was issued upon the judgment and returned wholly unsatisfied. The respondent then applied for and obtained an execution under section 1391 of the Code of Civil Procedure against the amount thus paid to her, directing that her husband pay ten per cent thereof or fifteen dollars each month to the sheriff until the judgment was paid. The appellant moved to vacate and set aside the execution. The motion was denied and the appeal is from that order.

A consideration of the section of the Code referred to shows that the order is erroneous. This section provides, among other things, that where an execution issued upon a judgment has been returned wholly or partly unsatisfied, and where any “wages, debts, earnings, salary, income from trust funds or profits ” are due and owing or shall thereafter become due and owing to the judgment debtor to the amount of twelve dollars or more per week, then the judgment creditor may upon application obtain an execution against such£ £ wages, debts, earnings, salary, income from trust funds or profits,” and upon presentation thereof by the officer to whom delivered for collection to the person from whom such “ wages, debts, earnings, salary, income from trust funds or profits ” are due and owing or may thereafter become due and owing to the judgment debtor, it shall become a lien and a continuing levy upon the same to *685the amount specified therein, which shall not exceed ten per cent thereof.

Under this section an execution can only be directed against “wages debts, earnings, salary, income from trust funds or profits,” none of which covers or includes voluntary payments. The learned court below, as appears from the order directing that the execution issue, evidently was of the opinion that the payments were in satisfaction of a “debt or profit” due from the husband to the wife. The husband is under no legal obligation to make the payment. While he is unquestionably liable for the proper support and maintenance of his wife, he is not, in the absence of a decree or agreement, *indebted*to her in any sum whatever. *(Bomaine*v. *Chauncey,*129 IT. T. 566.) A voluntary payment can no more be said to be in satisfaction of a debt than can a gift, because in either case there is no legal obligation to make it. The payments were not “ profits. ” In the sense in which used “ profits ” is the advantage or gain resulting from the investment of capital or the acquisition of money beyond the amount expended — a pecuniary gain.

If the appeEant were living with her husband and he were making her a similar allowance for spending money, no one, I take it, would contend that such allowance could be reached in the manner here sought. The fact that they are voluntarily Eving separate and apart does not change the situation. The legal obEgation- which the husband is under to support the appeEant is limited to the amount which is necessary for her maintenance and support — an amount which can be fixed by him in the absence of a decree of the court — and there being no proof to the contrary, it must be assumed that the amount which he pays her is necessary for that purpose.

The order appealed from is, therefore, reversed, with ten doEars costs and disbursements, and the motion granted, with ten doEars costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten doEars costs and disbursements, and motion granted, with ten doEars costs.