(77 Hun, 27.)

#### BUFFUM v. FORSTER et al.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

Injunction—J urisdiction—Adequate Remedy at Law.

The collection of a judgment out of real estate purchased with pension money of the debtor will be enjoined, though the debtor had an adequate remedy at law, by motion, in the action in which the judgment was rendered, to set aside the levy, as the debtor’s claim to the exemption may be controverted, and he is entitled to have the question determined on common-law evidence, and is not bound to have it disposed of on affidavits.

Appeal from special term.

Action by Thomas J. Buffum against Joseph Forster and August Beck, as sheriff. From an order denying a motion to vacate a temporary injunction, defendants appeal. Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

De Witt & Cutting, for appellants.

Charles E. Forsyth, for respondent.

HAIGHT, J.

This action was brought to restrain the defendants from taking any proceedings to enforce the collection of a judgment entered in favor of the defendant Forster against the plaintiff out of his real estate. It appears that the plaintiff is a veteran of the war of the Rebellion, and receives a pension from the government of the United States; that he is the owner of the real estate in question, and that all of the money that has been paid thereon was paid from the pension money that he received from the government; that he is a married man, and has a family dependent upon him for support; that he and his family occupy the premises as a home, and that the same was purchased by him for that purpose. It further appears that the defendant Forster recovered a judgment againt the plaintiff in August, 1893, in the county court of Erie county; that he has caused execution to be issued thereon, and has delivered the same to the defendant Beck, as sheriff of the county; that defendant Beck, as such sheriff, has advertised for sale under the execution the real estate mentioned. Thereupon this action was brought, and a temporary injunction obtained, restraining the defendants from selling the premises under the execution until the further order of the court. It must now be regarded as settled that not only pension money, but also property purchased by the pensioner with such money, which is necessary or convenient for the support and maintenance of himself and family, is exempt. Code Civ. Proc. § 1393; Stockwell v. Bank, 36 Hun, 583; Bank v. Carpen*286ter, 119 N. Y. 550, 23 N. E. 1108. It is contended, however, that this action cannot be maintained, for the reason that the plaintiff had an adequate remedy at law; that he could have moved in the action in which the judgment was obtained to set aside the levy and to enjoin the judgment creditor from taking any proceedings to enforce the execution by the sale of the real estate. Possibly this could have been done. It was the practice adopted in Bank v. Carpenter, supra, but in that case this question was not raised or considered. We shall, however; for the purposes of the argument, assume that the plaintiff could have obtained relief by a motion. We are, however, of the opinion that he was not bound to do so, and that he may resort to an action in equity for that purpose. The judgment recovered by the defendant Forster against the plaintiff herein is an apparent lien upon the real estate in question. The right of the plaintiff to exemption is dependent upon facts extrinsic of the record in that action. In order to relieve his real estate from the lien of that judgment he must establish as facts that he was a pensioner, and that the real estate was purchased with his pension money. His claim in this regard may be controverted, and we think he has the right to have this question tried and determined upon common-law evidence, and that he-is not bound to have it disposed of in a motion upon ex parte affidavits. In Railroad Co. v. Haws, 56 N. Y. 175, it was held that equity will restrain proceedings upon a verdict, or the collection of a judgment, where it is made to appear by facts of which the party could not avail himself as a defense that the enforcement thereof would be contrary to equity and good conscience; and that the party- is not bound to seek his relief by a motion in the original action, but may institute an action for that purpose. If the proceedings under the execution should result in a sale of the plaintiff’s real estate, an apparent cloud would be placed upon the title of the property. Equity is often resorted to to remove clouds upon title, and, if this may be done, we see no reason why a court of equity may not also be- resorted to for the purpose of preventing the creation of such cloud. Butler v. Johnson, 111 N. Y. 204, 218, 18 N. E. 643. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.