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Kelly v. Mulcahy

131 A.D. 639 Court First Department, Decision date 1909-04-08 English

Delivered by McLaughlin, J.:

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James Kelly, as Administrator, etc., of Catherine Kelly, Deceased, Respondent, v. John Mulcahy, Appellant.
First Department,
April 8, 1909.

Headnote

Practice — garnishee — amendment to section 1391, Code Civil Procedure.
Where a judgment in an action for negligence was recovered prior to September 1, 1908, when the amendment to section 1391 of the Code of Civil Procedure, made by chapter 148 of the Laws of 1908 took effect, no order to garnishee the salary of the judgment debtor should be granted, as the amendment applies only to judgments recovered after it took effect.
Appeal by the defendant, John Mulcahy, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 3d day of February, 1909, denying the defendant’s motion to vacate an ex parte order directing that an execution issue against the defendant’s salary.
John H. McCrahon, for the appellant.
Alfred Steckler. for the respondent.

The plaintiff, on the 9th of March, 1907, in an action to recover damages for the death of his intestate caused by the negligence of the defendant, recovered a judgment against him for a substantial sum. On the 12th of ¡December, 1908, execution upon the judgment having been issued and returned unsatisfied, the plaintiff,

p. 640
without notice to the defendant, applied under section 1391 of the Code of Civil Procedure to and obtained from the court an order directing that an execution issue against the salary of the defendant. The defendant moved upon notice to vacate the order, which was denied, and he appeals.

This section, when the judgment was recovered, provided among other things that in order to obtain an execution against the wages or salary of the judgment debtor, the judgment must have been obtained wholly for necessaries furnished or work performed in a family as a domestic. (See Laws of 1905, chap. 175.) An execution against the salary of the defendant could not have been issued when the judgment in this action was recovered, because it was for the damages caused by his negligence. (Neuman v. Mortimer, 98 App. Div. 64 .) This section has, however, since then been amended (Laws of 1908, chap. 148) by pi-oviding that an execution may issue against the wages or salary of the judgment debtor where such wages or salary amount to twelve dollars per week or more. But the amendment did not apply to judgments recovered before it took effect, which was September 1, 1908. It does not have a retroactive effect, and, as this court has several times held, applies only to judgments recovered after that statute went into effect. (King v. Irving, 103 App. Div. 420 ; Sloane v. Tiffany, Id. 540 ; Ringe v.Mortimer, 116 id. 722; Demuth v. Kemp, 130 id. 546.)

The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs.

Pattebson, P. J., Ingeaham, Laughlin and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

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