(dissenting):
I cannot" concur in the conclusion at which. my associates have arrived, and for these reasons:
It appears that among other moneys paid by the husband to the wife, she had received $150 in August, 1900. She testified that this money was paid to her as wages at $5 per week, for the preceding thirty weeks. • Afterward she testified that it was given to her as pin money. I think it fairly deducible from her testimony that she still has this money in her possession. The court appointed a receiver and directed Mrs. Archibald to pay that sum over to him. She appeals from the order, upon the contention that section 2447 of the Code of Civil Procedure does not authorize such an order. That section reads as follows: “ Where it appears, from the examination or testimony taken in a special proceeding authorized by this article, that the judgment debtor has, in his possession or under his control, money or other personal property -belonging to him; or that .one or more articles of personal property, capable of delivery, his right to the possession whereof is not substantially disputed, are in the possession or under the control of another person; the judge, by whom the order or warrant was granted, or to whom it is returnable, may, in his discretion, and upon such a notice, given to such persons, as he deems just, or without notice, make an order, directing the judgment debtor, or other person, immediately to pay the money, or deliver the articles of personal property, to a sheriff, designated in the order, unless a receiver has been appointed, or a receivership has been extended to the special proceeding, and in that case to the receiver.”
*477There is no question that if the money was in the possession, or under- the' control, of the judgment debtor, the order was proper, but it is contended that as it was not in his possession or under his control, but in the possession of his wife, the order was not proper and that the plaintiff must resort to an action against the wife. But I think the section authorizes the order, both as to money and other personal property, where there is no substantial dispute as to ownership.
In Davis v. Briggs (24 N. Y. St. Repr. 896), where money was paid by a judgment debtor to a third party under a void agreement, the General Term of this department ordered the payment to the judgment creditors. I find no case in which the authority of this decision upon this point has been questioned.
In Bauer v. Betz (4 N. Y. St. Repr. 92) a similar conclusion was reached by the General Term of the first department.
In Krone v. Klotz (3 App. Div. 587) the Appellate Division of the first department held inferentially that it was only where there was a substantial dispute as to the ownership that the parties could be relegated to an action, and reversed an order directing the payment of money, solely on the ground that there was a substantial dispute.
This brings me to the question whether there was any substantial dispute about the possession, and this includes the question of the right to the possession of the money.
The evidence shows that just before the recovery of the plaintiff’s judgment against the defendant the latter paid to his wife upwards of §1,100, of which she claimed $150 was due her and was paid her for her services rendered in the household for thirty previous weeks at $5 per week. She testified that of the whole amount paid to her she had §300 or $400 at her home where she resided with her husband. This $150 did not belong to her. It was paid to her under a contract which was clearly void, and it could be reached by the creditors of the husband. (Conger v. Corey, 39 App. Div. 241.) It was the money of the husband, and, being at the home of the husband and wife, was in his possession as much as it was in hers.
The design of the Code was to provide a summary remedy for reaching and applying the funds of a judgment debtor to the payment of a judgment against him. It was not necessary to enact such *478a statute to enablé the creditor to reach the funds by an action either by himself or a receiver. Such a right-of action existed at common law. The section provided an additional and specific remedy, and,, in my opinion, applies to a case like the present. The husband’s right to the possession of the money in question is not “ substantially disputed ” by any testimony presented in the record; and the creditor should not be compelled to resort to an action to reach the funds where, as in the present case, the debtor’s ownership is clear - and undisputed.
I think that the order should be affirmed.
Order of the city judge of Yonkers, so far as it denies motion to-.. modify prior order by striking out the provision directing payment, by the appellant to the receiver, reversed upon the law and facts, with ten dollars costs and disbursements; and appellant’s1 motion granted, to that extent, with costs.