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Hedges v. Keiser

135 A.D. 12 Court First Department, Decision date 1909-12-03 English

Delivered by McLaughlin, J.:

Contents

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Dayton Hedges, Appellant, v. Robert A. Keiser, Respondent.
First Department,
December 3, 1909.

Headnote

Execution against salary — statute retroactive.
The amendment to section 1391 of the Code of Civil Procedure permitting an execution against the salary of a j udgment debtor is retroactive, so that the execution can be issued on a prior j udgment. .
Appeal by the plaintiff, Dayton Hedges, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New-York on the 16th day of August, 1909, granting the defendant’s motion to vacate a writ of execution theretofore issued herein.
William Thorn Simpson, for the appellant.
Herman Hoffman, for the respondent.

On the 29th of May, 1908, plaintiff recovered a judgment against the defendant for money loaned, upon which an execution was issued and returned wholly unsatisfied. On the 30th of November, 1908, an order was made directing the issuance of an execution against the salary of the defendant to the extent of ten per cent. The execution was issued and a levy made. On the 19th of. July, 1909, defendant moved to vacate the execution. The motion was opposed upon the ground that section 1391 of the Code of Civil Procedure, as amended by chapter 148 of the Laws of 1908, which permits an execution to be issued against salary, did pot take effect until after the entry of the judgment, and that the statute did not have a retroactive effect. The motion was granted and the execution vacated, the learned justice at Special Term evidently relying upon the' decisions of this court in Kelly v. Mulcahy ( 131 App. Div. 639 ) and Laird v. Carton (132 id. 176). Since the decision of - the motion which resulted in the order here appealed from, Laird v. Carton (supra) has been reversed by the Court of Appeals ( 196 N. Y. 169 ), that court holding that there is nothing in the language of the statute which indicates a legislative intent to limit

p. 13
an execution to judgments recovered subsequent to the time the statute went into effect.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion to vacate denied, with ten dollars costs.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

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

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