Majority
p. 722Henry Ringe, Appellant, v. John Mortimer, Respondent. Second Department. January 11, 1907.
Headnote
Execution —judgment for necessaries — section 1391 of the Code of Civil Procedure not retroactive.The rule that section 1391 of the Code of Civil Procedure allowing the enforcement of a judgment for necessaries out of the income of a trust fund is not . retroactive, has not been changed by the amendment to said section made by chapter 175 of the Laws of 1905.
Appeal by -the plaintiff, Henry Ringe, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 29th day of May, 1906.
Warren S. Burt, for the appellant.
William H. Cochran, for the respondent.
This is an appeal from an order of the Special Term vacating an order granted under section 1391 of the Code of Civil Procedure, directing that execution issue against part of the income payable to the defendant from a trust during his life, and vacating the execution issued thereunder. The trust was created under a will probated in 1894. . The amendment by chapter 175 of the Laws of 1905 of section 1391 of the Code of Civil Procedure, as amended
p. 723
by chapter 461 of the Laws of 1903, does not affect the full application of the judgments of the first department of this court in King v. Irving ( 103 App. Div. 420 ) and Sloane v. Tiffany (Id. 540). I am of opinion that we should follow them, and I, therefore, advise the affirmance of the order, with ten dollars costs and disbursements.
Woodward, Hooker and Rich, JJ., concurred; Gaynor, J., concurred in result.
Order affirmed, with ten dollars costs and disbursements.