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Hedges v. Keiser

119 N.Y.S. 751 Court N.Y. App. Div. Decision date 1909-12-03 English

Delivered by McLAUGHLIN, J.

Contents

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p. 751
HEDGES v. KEISER.
(Supreme Court, Appellate Division, First Department.
December 3, 1909.)

Headnote

Exemptions (§ 8*)—Retroactive Legislation—Salaries.
Code Civ. Proc. § 1391, so amended as to permit the issuance of execution against salary, authorizes the issuance of execution against salary to satisfy a judgment rendered prior to the amendment. »
[Ed. Rote.—For other cases, see Exemptions, Cent. Dig. § 8; Dec. Dig. § &*]
•For other caaes see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Appeal from Special Term, New York County.
Action by Dayton Hedges against Robert A. Keiser. Prom an order granting a motion to vacate an execution, plaintiff appeals.
Reversed, with directions.
Argued before INGRAHAM, McLAUGHLIN, HOUGHTON, CLARKE, and SCOTT, JJ.
W. Thorn Simpson, for appellant.
Herman Hoffman, for respondent.

On the 39th 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 39th of October, 1908, an order was made directing the issuance of an execution against the salary of the defendant to the extent of 10 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, which permits an execution to be issued against salary, did not take

p. 752
effect until after the entry of the judgment, and that the statute did mot have a retroactive effect. The motion was granted and the execution vacated; the learned justice at Special Term evidently relying' upoii the decisions-o"f this court in Kelly v. Mulcahy, 131 App. Div. 639 , 116 N. Y. Supp. 61 , and Laird v. Carton, 132 App. Div. 176 , 116 N. Y. Supp. 851 . 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 (Laird v. Carton, 196 N. Y. 169 , 89 N. E. 822 ); that court holding there is nothing in the language of the statute which indicates a legislative intent to limit an execution to judgments .recovered subsequent to the time the statute went into effect.

The order appealed from, therefore, is reversed, with $10 costs and disbursements, and the motion to vacate denied with - $10 costs. All concur.

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