Opinion
February 28, 1958
Donner Firstenberg for judgment creditor.
Carl A. Melvin J. Espach for third party.
This is an application by the judgment creditor pursuant to section 794 of the Civil Practice Act for an order directing a third party, Franklin Square Water District, to turn over to the judgment creditor certain funds allegedly owed by said third party to the judgment debtor.
Pursuant to a contract made in 1952 between the judgment debtor Bermuda Building Corp. (hereinafter sometimes referred to as "Bermuda") and Franklin Square Water District (hereinafter sometimes referred to as "the Water District") the judgment debtor agreed to lay water mains in certain streets in Franklin Square in accord with the Water District's plans and specifications. The judgment debtor paid the full cost of installation and it was further agreed that the Water District, over a 10-year period, would refund to the judgment debtor a sum not exceeding 75% of the cost of installation. Payment to the judgment debtor was conditioned upon and was to be made from receipts of the Water District from the sale of water to consumers serviced by the mains installed by Bermuda. The moneys were to be paid to Bermuda, if and when collected, on the first day of June of each year, and, until the first of June of each year, it is impossible to determine the amount of money, if any, which is due Bermuda under the agreement. Thus, the third party opposes the entry of an order directing payment of any amount other than $198.07, which is the amount presently due Bermuda as of June 1, 1957, claiming that any future payments due the judgment debtor are both unmatured and unascertained and are not within the intended scope of section 794 of the Civil Practice Act.
Section 794 provides for the issuance of an order directing a person indebted to a judgment debtor to pay the amount of that debt to the judgment creditor. It also provides that: "If the indebtedness is unmatured, the order shall direct that payment be made on the date when the indebtedness shall mature."
The above provision is intended to apply to " presently existing but unmatured indebtedness." (Seventh Annual Report of N Y Judicial Council, 1941, pp. 350-351, emphasis supplied.) The amounts of those payments to be made in the future are not sufficiently definite or certain at this date to warrant the entry of an order providing for specific future payments.
Accordingly, this motion is granted to the extent only that an order be entered directing that the third party Franklin Square Water District turn over to Liberti Contractors, Inc. the sum of $198.07, being the amount due to the judgment debtor Bermuda Building Corp. on June 1, 1957.
Submit order.