N. Y. COMMON PLEAS.

#### Aaron Waldman agt. Frank A. O’Donnell.

*Supplementary proceedings—salary of a judicial or other public officer, while in the hands of the disbursing officer of the general or municipal government, ca/nnot be reached by.*

The salary of a judicial or other public officer, while in the hands of the disbursing officer of the general or municipal government in his official capacity, in common with other money to be applied by him towards the payment of judicial and other official salaries according to law, can neither be arrested, attached, seized nor taken under attachments, judgments, executions or supplementary proceedings founded thereon or taken in aid thereof.

The ground of exception stated.

*Special Term, April,*1879.

This was a motion to vacate an order granted herein and served on the defendant, requiring the comptroller of the city of New York to attend as a witness before a referee, in a proceeding supplementary to execution, and testify concerning the property of the defendant in his possession, namely, the defendant’s salary as an officer or employe of the corporation, the mayor, aldermen and commonalty of the city of New York, and also restraining the comptroller from transferring or disposing of said property until the further order of the court.

*EllAot Sandford,*attorney for the defendant, for the motion.

First. Such an order is against public policy. If allowed the comptroller would be compelled to attend at numberless places to prove a fact which can be shown, as .readily by the defendant’s testimony; the defendant is as competent to testify what the city owes him for his salary as an officer of the corporation.

Second. If the comptroller should attend and testify that *216he had not paid defendant’s salary, it would he of no benefit to plaintiff.

Salaries paid by the comptroller are derived from taxes which are raised for a special purpose, and by public policy not allowed to be diverted *(Lowber*agt. *The*Mayor, 7 *Abb.,*248; *Bliss*agt. *Lawrence,*58 *N. Y.,*445, 451; *Remmey*agt. *Gedney, post*217).

For reasons of public policy, the salaries of officers and pay of employes of the state cannot be reached by creditors by proceedings supplementary to execution or any other judicial process.

Proceedings supplementary to execution cannot be extended to reach an indebtedness of a public corporation to the execution debtor, for a salary for his services as an officer. Thus a county cannot be joined as defendant in such proceedings, for the purpose of compelling it to pay over the debtor’s salary as county auditor, to be applied on the judgment ( *Wallace*agt. *Lawyer,*54 *Ind.,*401).

The phrase “any person or corporation” in a statute, authorizing any person or corporation to be joined in proceedings supplementary to execution, in respect to their indebtedness, &c., to the judgment debtor, does not include municipal corporations, but should be confined to private corporations *(Wallace*agt. *Lawyer,*54 *Ind.,*501; 54 *Ga.,*108, 399).

Such money is in the nature of a trust. Salary of $137 due for March not to be touched, as earned after the order is served, which is dated March 13, 1879 (16 *How.,*549). A government is not subject to garnishment; nor is an officer of its revenue when funds sought to be reached, belong to government, or are claimed by it and to which it has the possession by him, he having no connection therewith as a private person; but having received them in his official capacity from ■his superiors as public money, and holding it as such when served with a summons, and continuing so to hold it until transferring it by order of government to another similar offi*217cer. And it makes no difference, that the government is not *de jure,*but merely *de facto (Wilson*agt. *The Bank,*55 *Ga.,*98).

A corporation for whom a laborer works under an agreement that his monthly wages are to be paid to a third person, as here, the treasurer, who is to account to him therefor at the end of each month, is not liable in a trustee process in favor of a creditor of the laborer *(Callahan*agt. *Pocasset,*119 *Mass.,*173).

Third. The motion should be granted.

*Chittenden <& Fiero,*for the plaintiff in opposition.

Larremore, J.

It appears on the face of the order that the salary of the defendant due from the municipal, corporation is in the hands of the comptroller, and he is required to attend and testify as a third person, relative to the same.

It has been held in this court that such an order should not be granted as the salary of the officer or employe is, until paid over, mingled in the treasury of the corporation with other funds, and not separated and cannot be considered, while in the hands of the comptroller, as the property of the defendant.

This question has been discussed very fully by Hr. justice HoAdam, and I refer the counsel to his well considered opinion.

The motion to vacate the order is granted, but without costs.

The opinion of HoAdam, J., referred to, is as follows: