Sarah B. Halsted, Appellant, v. Charles S. Halsted, Defendant; James M. Halsted and Others, Respondents.
Husband and wife —the payment of alimony will not be enforced by a creditor’s bill until other remedies are exhausted.
A wife who, in an, action brought- py her to procure a divorce, has obtained an order awarding her alimony pending the action, is not-entitled to institute a second action to restrain' trustees of her husband from paying to him the income of certain trust funds, in excess of a certain sum per month, and thus to secure the surplus of such income for payment of the alimony, unless she has first exhausted the other remedies open to her ^ such as the right given her by section 779 of the Code of Civil Procedure to issue an execution against the personal property of the husband.
Appeal by the plaintiff, Sarah B. Halsted, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 19th day of July, 1897, denying her motion for an injunction restraining the defendants, the trustees of Charles S. Halsted, from paying to him any part of the accrued income in their hands, or the income which may accrue from time to time, from the funds of the several trusts in excess of fifty dollars per month in the aggregate, until the final decree in the action, and restraining the defendant Charles S. Halsted from demanding or -receiving any part of said income in excess of said sum, and the defendant trustees from making any such payment, and vacating and dissolving a temporary injunction theretofore obtained by her.
The action, which was in the nature of a creditor’s bill, -was brought by the plaintiff to obtain money of the defendant Charles ¡S. Halsted with which to defray the expense of the action for -divorce brought by her against him, and pending at the time of the -commencement of this action, which moneys have been awarded to Jier bv an order of the Supreme Court.
Henry D. Hotchkiss, for the appellant.
. Edgar J. Wathcm and George L. Shearer, for the respondents.
Patterson, J.:
The motion for an injunction was properly denied and for the reason that the plaintiff was not in a situation to institute this action, *467which was evidently brought upon the supposed authority of Wetmore v. Wetmore (149 N. Y. 520). The ground upon which that case proceeded was, that the plaintiff was entitled to maintain a creditor’s action to reach the surplus of the .trust fund in the hands of the trust company, and it appeared that the plaintiff there had exhausted all the remedies given by the Code to obtain payment of the alimony awarded on the final judgment. Assuming, without deciding, that the right to maintain an action of this character would lie upon an award of alimony made by a binding order, still, that right would depend upon the plaintiff having exhausted the ordinary remedies for the enforcement of the order, which was, manifestly, not done-in this case. Sequestration proceedings were not resorted to, and further than that, no execution was issued. The right to issue the execution existed. Section 779 of the Code of Civil Procedure enacts that where a sum of money is directed by an order to be paid, if it is not paid within the time fixed by the order, or within ten days after the service of the order, an execution against the personal property of the party required to pay the same may be issued by any party or person to whom the same is payable by the terms of the order. The plaintiff, therefore, did not exhaust the remedies open to her, and consequently • cannot maintain a creditor’s action.
The order appealed from should be affirmed, with costs.
Van Brunt, P. J., Barrett, Bumsey and Williams, JJ., concurred.
. Order affirmed, with ten dollars costs and disbursements.