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Meyer v. Halberstadt

44 Misc. 408 Court N.Y. Sup. Ct. English

Delivered by Blanchard, J.

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p. 408
Diedrich A. Meyer, Plaintiff, v. Albert G. Halberstadt, Defendant.
(Supreme Court, New York Special Term,
July, 1904.)

Headnote

Execution, Code Civ. Pro., § 1391 — Retroactive effect of the clause authorizing a judgment creditor to reach his judgment debtor’s-wages.
The clause added to the Code Civ. Pro., § 1391, in effect September 1, 1903, authorizing certain classes of judgment creditors to reach a certain percentage of their judgment debtor’s wages where they exceed twenty dollars a week, applies to a judgment, recovered before September 1, 1903.
Motion by judgment debtor to set aside an order directing; that an execution issue against his wages, under section 1391 of the Code of Civil Procedure, as amended September 1,, 1903.
Gustav J. Voss, for plaintiff.
Charles W. Culver, for defendant.

The judgment upon which the execution was issued was recovered January 14, 1903. The judgment debtor contends that as the amendment to the Code authorizing the execution against his wages did not take effect until1 September 1, 1903, it does not apply to the judgment recovered against him. I do not think this contention should be sustained. Prima facie the wages of a judgment debtor would be liable to levy under an execution. Dains v. Prosser, 32 Barb. 290 . This amendment to section 1391 of the Code of Civil Procedure provides a mode of legal procedure-by which a judgment may be collected out of wages of the-judgment debtor by special form of execution, and limits the scope of the remedy of the judgment creditor through that process. The statute does not take away nor impair any vested right of the judgment debtor. The operation of the

p. 409
statute should, therefore, not be confined merely to judgments recovered after it took effect. People ex rel. Collins v. Spicer, 99 N. Y. 225 ; Matter of Davis, 149 id. 539; Kelly v. Brownlow, 54 N. Y. Super. Ct. 129 . It may also be observed that the language of the statute itself would seem to indicate that it was the legislative intent that it should apply to judgments theretofore recovered. The words of the statute, are “ where a judgment has been recovered.”

Motion denied, with ten dollars costs.

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