¶1It appears that the receiver of the judgment creditor herein, pursuant to order, demanded of the debtor the surrender of all property in his possession, particularly two trucks and one horse referred to and mentioned by the debtor in his examination in this proceeding, and that the debtor refused to comply with the demand. There*63after the receiver moved to punish him for contempt, but his motion was improperly denied. The record discloses no claim to exemption of the property at the time of the demand or even upon the hearing to punish for contempt. This was necessary, as the property in question was not absolutely, but only qualifiedly, exempt. Wilcox v. Howe, 59 Hun, 268. At that hearing the debtor deposed a disclaimer of ownership and was corroborated by the exhibition of a chattel mortgage that had been filed against the property in question on or about the 24th of October, 1907. The affidavit of the mortgagee disclosed that the mortgage was past due; but that did not make him the sole, absolute, and unconditional owner, for the mortgage provides for the rendition of any surplus arising upon the sale to the debtor herein, who, therefore, may be said to have had a leviable interest subject to the claim of said mortgage.
¶2The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted.
¶3Gildersleeve and Seabury, JJ., concur.
¶4Order reversed, with fen dollars costs and disbursements, and motion granted.