nishee, the creditor cannot obtain judgment against the garnishee without performing the condition. Katz v. Sorsby (1882) 34 La. Ann. 588.

In Bucklin v. Powell (1880) 60 N. H. 119, supra, it was unsuccessfully argued that the claim for unliquidated damages was subject to garnishment because of the presence of the word "rights" in the statute which made subject to garnishment money, goods, chattels, rights, or credit.

But a claim against a fire insurance company for a loss, which is not adjusted at the time of the service of the writ of attachment, is subject to garnishment, where it is adjusted before the taking of the deposition of the insurer (Gove v. Varrell (1877) 58 N. H. 78); or where it is adjusted before the answer of the garnishee (Franklin F. Ins. Co. v. West (1845) 8 Watts & S. (Pa.) 350).

And in the case of Hartt v. Edmon ton Steam Laundry Co. (1909) 2 Alberta L. R. 130, where a claim was held not garnishable, because no proofs of loss were made and no loss admitted by the insurer, the court said that the claim might at a certain stage be converted into a debt so as to te garnishable, by the amount being ascertained and agreed on, and liability admitted.

IV. Effect of option to restore.

A fire insurer is not subject to garnishment in respect to a loss, under a policy giving it the option of rebuilding the burned building, since the debt was not absolutely due without any contingency. Godfrey v. Macomber (1880) 128 Mass. 188.

And in Martz v. Detroit F. & M. Ins. Co. (1873) 28 Mich. 201, the insurance company was held not garnishable in respect to a loss by fire to a stock of goods, where the policy gave it the option to replace the goods, and the garnishment statute provided that no one shall be adjudged a garnishee by reason of any money or other things due from him to the principal defendant, unless it be at the time of service of a writ of garnishment due or to become due absolutely, without depending on any contingency. And the

court said: "It is undoubtedly true that the right to hold the company upon the garnishee process depended upon the state of the claim as one garnishable or not at the time of service. And as at that time, if we admit that the company was then fixed with a liability to indemnify according to the policy, it was wholly uncertain and undetermined whether, in the exercise of their privilege under the policy, they would replace the destroyed property, and so indemnify in that mode, or would pay the loss in money, their liability was contingent within. the meaning of the statute."

But it was held in Hanover F. Ins. Co. v. Connor (1886) 20 Ill. App. 297, that the indebtedness garnished was not rendered uncertain and contingent by the option given the insurance company by the policy to replace the property burned, since the indebtedness garnished was an absolute liability upon the part of the insurance company to pay the insured his loss at the option, on its part, of either paying in money or merchandise, and that its option to pay in one mode rather than another did not make the indebtedness uncertain and contingent, and, therefore, not subject to garnishment. The court distinguished the case of Godfrey v. Macomber (1880) 128 Mass. 188, supra, holding the contrary, upon the ground that in the latter case the property burned was a building, and there the alternative of payment in money was a right to erect a building, and that an election to rebuild would substitute for the policy a mere building contract, and that all that a judgment in garnishment could do, especially before a breach of such contract, would be to enforce its performance according to its terms, and performance would be the placing of permanent improvements and additions upon real property in the possession of the insured, and thus place the assets sought to be reached beyond the reach of the writ of garnishment. And the court distinguished the case of Martz v. Detroit F. & M. Ins. Co. (1873) 28 Mich. 201, supra, holding the contrary in reference to an election to replace the burned goods, up

on the ground of the difference in the statutes of the two states, the statute in the latter case requiring not only that the debt garnished should be payable without any uncertainty or contingency, but also that the mode of payment should be subject to no contingency. Another distinguishing feature is well brought out by the following language of the court: "The rule, then, that an indebtedness, to be subject to garnishment, must be owing absolutely and subject to no contingency, must be applied, in this state, in such way as to be consistent with the provisions of our statute. It is sufficient that the indebtedness be owing without uncertainty or contingency at the date of the answer. Even if it be contingent at the time of service, if the contingency be removed before answer, it is subject to garnishment under our statute. However, then, we may view the liability of the insurance companies in this case at the date of the service of the writ, it cannot be questioned that the insurance money was absolutely owing, and was due at the time the answers of the garnishees were completed. Then more than thirty days had elapsed after the production of proofs of loss and the adjustment of the loss. It is not pretended that the insurance companies elected to replace the property lost or damaged, and the time within which they were at liberty to make the election had then elapsed. The liability was then absolute to pay the loss in money, and it was in no way obnoxious to the rule excluding debts which are uncertain and contingent from the operation of the process of garnishment."

The fact that the insurer has the right under the policy to replace the burned goods, instead of paying any money indemnity, does not prevent the insured's claim against the insurer from being a debt subject to garnishment, where the insured has made a claim under the policy for a money payment, and the insurer has admitted the claim, and is ready to pay the money, and has paid it into court. Jobin Marrin Co v. Tyne (1917) 11 Ont. Week. N. 279.

A claim for loss against a fire insurance company under a policy giving the company an option to replace the property within a specified time is not subject to garnishment until the expiration of the time within which the option may be exercised. Dowling v. Lancashire Ins. Co. (1894) 89 Wis. 96, 61 N. W. 76. The court said that it has been repeatedly held that a debt, in order to be subject to garnishment, must be owing absolutely at the time of the service of the process, although it might be payable subsequently, and that where the question whether there will be any indebtedness or not depends entirely upon future contingencies, the insurance company cannot be garnished, and that in this case it was clear that there was no absolute liability on the part of the insurance company at the time of the service of the process of garnishment, and that liability might arise in the future after proofs of loss had been served and the time had elapsed for the exercise of the option, but that these were contingencies which might never happen.

And under a statute making subject to garnishment debts, obligations, and liabilities owing, payable, or accruing due, the only liability that can be garnished is a purely pecuniary one, which is absolute, and not dependent upon a condition which may or may not be fulfilled, and therefore a claim for a loss under a fire insurance policy containing a statutory condition giving an option to the company to replace the burned property, instead of paying the insurance money, is not garnishable before the expiration of the time given for the exercise of the option. Lake of Woods Mill. Co. v. Collin (1900) 13 Manitoba L. R. 154; Brookler v. Security Nat. Ins. Co. (1915) 25 Manitoba L. R. 537, 23 D. L. R. 595.

And the court was of the opinion in Simpson v. Chase (1891) 14 Ont. Pr. Rep. 280, that, granting that a claim for loss under a fire insurance policy which had been adjusted could be garnished under a statute enabling a creditor to reach all claims and demands of the debtor against the gar

nishee arising out of contract, where such claims and demands could be made available under equitable execution, that such a claim would not be the subject of garnishment as long as the insurance company's right to have the money applied in rebuilding was open.

Where the insurance company, after a fire, elects to avail itself of its option in the policy to rebuild the building instead of paying the loss in money, there is no liability which can be reached by garnishment. Hurst v. Home Protection F. Ins. Co. (1886) 81 Ala. 174, 1 So. 209. The court said, in reference to the claim that the garnishee should not have been discharged, but should have been held until it was ascertained whether it intended in good faith to rebuild, and until it actually rebuilt the building, that the court possibly would have made an order to that effect, if the attaching creditor had moved for such an order, but that it would not decide

the question, as no such motion had been made.

If the insurer has exercised his right under his option to replace or restore the property, and has replaced the goods, there is no indebtedness due from it to the insured which is the subject of garnishment. West Florida Grocery Co. v. Teutonia F. Ins. Co. (1917) 74 Fla. 220, L.R.A. 1918B, 968, 77 So. 209.

And after the election of an insurer to rebuild under a policy giving it an option so to do, and the letting of a contract for the work, although the premises were already advertised for sale under a mortgage, the insurer is not liable to garnishment for the amount of the insurance by the creditors of the insured, since there is no debt due by the insurer to the insured which can be reached by the creditors of the latter by garnishment. Stone v. Mutual F. Ins. Co. (1891) 74 Md. 579, 14 L.R.A. 684, 22 Atl. 1051. G. V. I.

2. The provision of a statute allowing the court, at any time, in a divorce proceeding against a nonresident or concealed defendant, to make an order or orders "without notice," directing sequestration of his property to be applied towards alimony, counsel fees, and support of children, will be held

cured jurisdiction of defendant by substituted service of process, or otherwise as provided by the Civil Practice Act. Statutes, § 219

constitutional law duty to construe statute to save constitutionality.

3. The court must, in construing a statute which is reasonably susceptible of two constructions, one of which

by the appellate division, which has certified two questions:

"1. Is chapter 51 of the Laws of 1923, amending article 70 of the Civil Practice Act by inserting therein a new section, numbered § 1171-a, unconstitutional in that it is violative of § 1 of the 14th Amendment of the Constitution of the United States and § 6 of article 1 of the Constitution of the state of New York.

"2. Was the defendant's motion to vacate and annul ab initio the order of the supreme court, New York county, entered herein on May 2, 1924, properly granted, in that said order deprives defendant of his property without due process of law?"

Section 1171-a is headed: "Sequestration of Defendant's Property in Action for Divorce or Separation Where Defendant Cannot Be Personally Served and There Is Property within the State."

It reads as follows: "Where in an action for divorce or separation it appears to the court that the defendant is not within the state, or cannot be found therein, or is concealing himself therein, so that process cannot be personally served upon him, the court may at any time. and from time to time make any order or orders without notice directing the sequestration of his property, both real and personal and whether tangible or intangible, within the state, and may appoint a receiver thereof, or by injunction or otherwise take the same into its possession and control. The property thus sequestrated and the income. therefrom may be applied in whole or in part and from time to time, under the direction of the court and as justice may require, to the payment of such sum or sums as the court may deem it proper to award, by order or judgment as the case may be, and during the pendency of the action or at the termination thereof, for the education or maintenance of any of the children of a marriage, or for the support of the wife, or for her expenses in bringing

and carrying on said action and the proceedings incidental thereto or connected therewith; and if the rents and profits of the real estate, together with the other property so sequestrated, be insufficient to pay the sums of money required, the court, upon such terms and conditions as it may prescribe, may direct the mortgage or sale of sufficient of said real estate to pay such sums. The court may appoint the wife receiver or sequestrator in such cases."

In its opinion the appellate division considered this section unconstitutional as authorizing the payment of alimony and counsel fee out of the sequestered property, without notice to the defendant, and before service of the summons in the action upon him. We agree that the defendant's property, whether he be resident or nonresident, cannot be paid out and disposed of by an order of the court, without some notice, actual or constructive, to the defendant, and an opportunity afforded him to be heard. We do not read this section, however, as attempting to confer such power upon the court. What the legislature evidently intended to provide for was the case where a husband had property within the state, and was concealing himself, or else had disappeared, so that personal service could not be made upon him. Under such circumstances, the court, in the interest of his wife and children and the public generally, was authorized to seize his property without notice, and to hold it for legal disposition. By article 54 of the Civil Practice Act, attachment was not provided for in matrimonial actions. This § 1171-a attempted to provide a remedy in the nature of an attachment, whereby, upon the commencement of an action, the husband's property could be seized and held for judgment or for order, after notice.

An analysis of the section leads to this construction. In the very first words we have, "Where in an action for divorce or separation it appears to the court that the defendant is