Whatever irregularities were existing in respect to the order to show cause, were waived by an omission to take advantage of them at the first opportunity.
When the defendant appeared upon the return of the order to show cause and asked for an adjournment, the judge had jurisdiction of the subject-matter and of the person of the defendant.
*98In Newell v. Cutler (19 Hun, 74) we held that the defendant had no right to violate a restraining order by interfering with his wages, even 'for the support of his family, in the absence of an prder permitting him to do so.
In Miller v. Hooper (19 Hun, 395) it was held that an order should be allowed adjudging wages exempt and restraining a receiver from taking proceedings to collect them.
But it is now insisted that section 2163 of the Code of Civil Procedure has changed the practice, - as we declared it to be -under section 297 of the old Code.
The appellant contends that by the new section “ the earnings are placed upon the same footing as exempt property, that the county judge had no jurisdiction to prohibit the use of so much of such earnings as the debtor could show was necessary for the support of his family.”
A plain answer to the position -and argument is found in the new section, when read in connection with section 2151, which confers a general power upon the judge in respect “ to the property of the judgment debtor.” Section 2163 declares the power shall not be exercised in certain specified cases.
Among them is the case of a debtor’s personal earnings for or “ services rendered within sixty days next before the institution of the special proceedings, when it is made to appear by his oath or otherwise that those earnings are necessary for the use of a family wholly or partly supported by his labor.”
When the restraining order was made, no such fact appeared by the oath of the debtor or otherwise.
The order was therefore made within the general power conferred, and it was the duty of the debtor to obey it till he made it appear by his oath or otherwise “ that the earnings were necessary for his family. Then he could invoke the powers of the judge to modify or annul the order so far as it restrained his use of his services or earnings within the sixty days” next before the institution of the special proceedings.” * * *
Technically, the order was valid and should have been obeyed. (Miller v. Hooper, supra ; Shults v. Andrews, 54 How., 378.)
The order adjudging the defendant in contempt must be affirmed.
*99The question is new under tbe Code of Civil Procedure, and we may therefore properly affirm, without costs.
Smith, P. J., and Haight, J., concurred.Order affirmed, without costs.