William F. Lawrence et al., Resp'ts, v. Frederick L. Pease, App'lt.
(Supreme Court, General Term, Second Department,
Filed December 12, 1892.)
1. Supplementary proceedings—Third party order—Trust fund.
A third party order was granted against the trustee of the estate of the judgment debtor’s mother, who, on his examination, testified that he had in his hands a certain amount of accrued income payable to the debtor and his sister, and that he was about to render his account. Held, that an order made on notice to the debtor that the judgment be paid from his interest in such moneys was proper.
2. Motions and orders—Motion to vacate.
A motion to vacate an order made, on further papers, is addressed to the discretion of the court, and where the party has had his day in court, and the order has been executed, a denial of such motion cannot be considered an abuse of discretion.
Appeal from two orders: one directing payment of a judgment out of moneys in the hands of a third person, and the other denying a motion to vacate the first order.
Plaintiffs, being the owner of a judgment against the defendant, obtained a third party order for the examination of the trustee under the will of defendant’s mother. On such examination the trustee testified as follows:
“I am an attorney and counselor at law, and reside at Yonkers, Hew York. I am well acquainted with Frederick L. Pease, the defendant and judgment debtor above named, and I am a trustee under the will of Rosena Pease, deceased, the mother of said Frederick L. Pease.
“ By and under the terms of the will of said Rosena Pease, the care and maintenance of Josephine A Pease, a daughter of the testatrix, was made a first charge upon the income from the estate; and after the expenses of maintaining her were met, the trustees were directed to divide and pay the balance of income remaining in their hands equally to and between Caroline CL Li'ndsley and said Frederick L. Pease annually. The trustees are about to render their account, and there is now in their hands about one thousand dollars subject to the division above mentioned, and of which said Frederick L. Pease under the terms of the will would receive one-half. I cannot state the exact amount, but it is very near $1,000.00, which will be divided. The precise amount cannot be certainly ascertained until the entry of the decree in the accounting above mentioned, proceedings for which have already been begun.”
On this deposition an order to show cause was granted, which was served on the trustee and the defendant, and after one adjournment at defendant’s request, an order was granted directing payment of the judgment by the trustee.
*852After the trustee had complied with the order defendant moved upon further papers to vacate, which motion was denied.
L. B. Bunnell, for app’lt;
Millard 0. Brnsberger, for resp’ts.
Pratt, J.
The order of May 28, requiring payment to the judgment creditor, was justified by the papers before the court. Nothing in the testimony tended to show that the title to the fund was in the trustee or that it was not properly subject to the proceeding. The order as made was, therefore, proper.
The application upon further papers to vacate the order of May 28, was addressed to the favor of the court and was properly denied.
The judgment debtor had enjoyed his day in court, and under the circumstances of the order being executed, a re-hearing would not have been in the interest of justice.
It must not be inferred that we thinlc a re-hearing would have changed the result. On the contrary, we are of opinion that upon the fresh papers the same decision would have been made.
Order affirmed, with $10 costs and disbursements.
¡ Barnard, P. J., concurs; Dykman, J. not sitting.