#### Gilbert T. Davis and B. Frank Davis, Pl’ffs and App’lts, *v.*George W. Briggs, Def’t, and Amos S. Briggs, Resp’t.

*(Supreme Court, General Term, Second Department,*

*Filed May 13, 1889.)*

Supplementary proceedings—Execution—Code Crv. Pro., § 2433— Jurisdiction.

Where an insolvent judgment debtor paid $1,000 under a written agreement for the hoard of himself and wife for two years in advance, *Held*(1), that such an agreement was void as against creditors of the debtor (3 R. S., 135, § 1 [7th ed.], p. 3337); and (3), that the person who received the money having been examined as a witness in supplementary proceedings against the debtor under section 3433, subdivision 1 of the Code, and there being no question as to the intention of the parties, and no dispute about the facts, is subject to the order of the county judge authorizing such supplementary proceedings to the extent of the money in his hands; and no suit is necessary against such holder of defendant’s money to determine his rights, as he is merely a depositary of the money subject to the claim of defendant’s creditors.

Appeal from an order of the special term of the supreme court, reversing an order made by Hon. Isaac N. Mills, county judge of Westchester county in supplementary proceedings, which directed Amos S. Briggs, who had in his hands money of George W. Briggs, the judgment-debtor, to pay $267 thereof to the receiver under section '2447 of the Code.

*897The defendant, who was insolvent, received in February, 1888, $2,284 from one of his debtors. A day or two after its receipt he paid to Amos S. Briggs $1,000 under the foho wing contract:

“For and in consideration of the sum of $1,000 in hand, paid to me by George W. Briggs, I do hereby agree to board and take care of the said George W. Briggs and his wife for the space of not exceeding two years and I do, also, cancel my claim against the said George W. Briggs for the board of himself and wife since August 1, 1887, to the date hereof.

“In witness whereof, I have hereunto set my hand and seal, this 1st day of March, 1888.

“A. S. BRIGGS, [l. s.]

“In the presence of E. T. Lovatt.”

On March 2, 1888, the plaintiff commenced an action in the supreme court of New York, against George W. Briggs, and subsequently obtained judgment on that action for §218.13, and an execution issued thereon was returned wholly unsatisfied.

On May 24, 1888, plaintiff obtained an order from Hon. Isaac N. Mills, county judge of Westchester county, requiring the defendant to appear before a referee therein appointed, to make discovery, on oath, concerning his property, under section 2447 of the Code.

The defendant, and also Amos S. Briggs, appeared before the referee, and were both examined as witnesses. They both testified that $1,000 had been paid by the defendant to Amos S. Briggs, under the agreement dated March 1, 1888, as above stated. Whereupon the county court made an order appointing George C. Andrews, receiver of the defendant, and directed Amos 8. Briggs to pay the sum of $267, the amount of the debt, disbursements and costs in this action, to the receiver. From this order, Amos 8. Briggs appealed, and at a special term of the supreme court, held at White Plains, in Westchester county, December 15, 1888, it was ordered that the said order of the said county judge be vacated. From this order the plaintiff appealed to the general term of the supreme court'.

*Henry C. Griffin,*for app’lts.

1. The contract by which George W. Briggs was to pay $1,000 to Amos 8. Briggs for his future support, is absolutely void as against appellant’s claim. 2 R. 8., 135, § 1 (7th ed.), p. 2327; *McLean*v. *Button.*19 Barb., 450; *Goodrich*v. *Downs,*6 Hill, 438; *Curtis*v. *Leavitt,*15 N. Y., 1-148; *Young*v. *Heermans,*66 id., 374-381; *Swift*v. *Hart,*35 Hun, 128, 130.

2. The county judge had authority to make the order. *898Amos S. Briggs held $1,000 of defendant’s money under a void agreement. It was not necessary to have this agreement set aside by an action in a court of equity.

Where an instrument is absolutely void as to creditors, it is no protection as against them in a proceeding to acquire a lien on the property conveyed. *Keller*v. *Paine,*107 N. Y., 83-89; 11 N. Y. State Rep., 330; *Chautauqua Bank*v. *Risley,*19 N. Y., 369; 3 R. S. (7th ed.), p. 2330; *Reynolds*v. *Ellis,*103 N. Y., 115; 2 N. Y. State Rep., 786; 2 R. S., 135, § 1, (7th ed.); *Goodrich*v. *Downs,*6 Hill, 438.

3. The county judge had authority and jurisdiction to make the order, under section 2447 of the Code.

*William F. Purdy,*for Amos S. Briggs.

Pratt, J.

It is clear that the agreement between the defendant, and A. S. Briggs, except, so far as the same paid an existing debt, was void. There was no question of intent involved, and no dispute about the facts. There was more than sufficient money to pay the judgment in the hands of A. S. Briggs, belonging to the judgment debtor, and the order of the county judge was, therefore, right. Had A. S. Briggs made any claim to the money, other than under an agreement, void upon its face, a suit would have been necessary to determine the rights of the parties, but under the facts proved, it must be deemed that the judgment debtor had so much money on deposit in the hands of A. S. Briggs, subject to the claims of his creditors.

It is well settled that where an instrument is absolutely void as to creditors, it is no protection as against them in a proceeding to acquire a lien on the property conveyed. *Keller*v. *Paine,*107 N. Y., 83; 11 N. Y. State Rep., 33; *Chautauqua Bank*v. *Risley,*19 *N.*Y, 369.

By the same reasoning, if the agreement between the debtor and A. S. Briggs was void, and furnished no protection, then the money paid under it was subject to the order of the county judge in the supplementary proceedings. _

_ That such an agreement is void, as against creditors, scarcely requires the mention of any authorities.

If these views are correct, they dispose of all questions in this proceeding.

Order reversed, but without costs.

All concur.