196 N.Y. 169
N.Y.
1909
Willard Bartlett, J.

Priоr to September 1, 1908, an execution to reach the wages, debts, earnings or salary due and owing to the judgment debtor could be issued under section 1391 of the Code of Civil Proсedure only where the judgment had been recovered wholly for necessaries sold or work performed as a domestic, or for salary owing to an employee of the judgment debtor. By an amendment to that section which took effect on September 1,1908 (Laws of 1908, chap. 148), such an execution was made issuable on any money judgment.

(1) The first question certified by the Appellate Division is whether such an execution, namely, an execution against wages, debts, earnings or salary, can lawfully be issued upon а judgment recovered before September 1, 1908. Or was the amendment designed to authorize such executions only upon judgments which should be recovered after that date ?

An execution is a remedy; it is a remedial process.

Statutes regulating legal remеdies are generally construed as operative upon an existing condition of tilings as well as upon conditions to arise after their enactment. “ Where a new statute deals with procedure only, prima facie it applies to all actions — those which have accrued or are pending *172 and future actions.” (Sutherland on Statutory Construction, р. 630.) Section 1391 of the ‍‌‌​​‌‌​‌‌​​‌‌​‌‌​‌​‌​‌‌​‌​‌​​‌​‌​‌‌​‌‌​​​‌​​‌‌​‌‍Code of Civil Procedure, as amended in 1908, begins with the words: “ Where a judgment has been recovered,” etc.

There is nothing in the language of the amendment to indicate a legislative intention thаt the right to issue execution against wages, earnings or salary shall be confined to cases in which the judgments are hereafter to be recovered. It is enough that a judgment “ has been recovered ” when the execution is sought to be issued.

A difference of opinion has arisen between the Appellate Division in the first department and the Appellate Division in the second department in regard to this question. The views of the Appellate Division in the first department are expressed in the opinion in the рresent case and in Kelly v. Mulcahy (131 App. Div. 639). The views of the Appellate Division in the second department are set forth in Myers v. Moran (113 App. Div. 427). We have reached the same conclusion as that arrivеd at by Mr. Justice Jenks in that case, to wit, that under section 1391 of the Code of Civil Procedure, as amended in 1908, the court may allow execution to issue against wages, although the judgment upon which the execution is sought was rendered before the enactment of the amendment.

The amendment to section 1391, like the whole section as it stood bеfore the amendment, relates to proceedings in a law suit, i. e., the execution or final process; hence it is a statute dealing with a legal remedy. It applies tо all cases which have reached the intermediate stage between judgment and execution. As has been pointed out the phraseology of the amendment does not require us to construe it as applicable only to future judgments. It' matters ‍‌‌​​‌‌​‌‌​​‌‌​‌‌​‌​‌​‌‌​‌​‌​​‌​‌​‌‌​‌‌​​​‌​​‌‌​‌‍not that when the judgment was recovered an execution could not issue thereon agаinst wages, earnings or salary; it is enough that such an execution has subsequently been authorized. The statutory authorization for its issuance does not impair the obligation of any contract or affect any vested right; it merely fur *173 nished the judgment creditor with a broader and more effective remedy than the law gave him before. To this there is no cоnstitutional objection. Such an application of the statute is not so much retroactive as active upon an existing condition of things, to wit, existing judgments which are yet to be enforced by execution.

In support of this construction we do not deem it necessary to cite the numerous cases which might be cited in addition to those to whiсh Mr. Justice Jexics refers in Myers v. Moran {suprcí). We may mention a few others, however, which are particularly forceful. In Sampeyreac v. United States (7 Peters, 222) it was said that it had been repeatedly decided in the Supreme Cоurt of the United States that the retrospective operation of a law providing a remedy forms no objection to it. “ Almost every law providing a new remedy affects and operates upon causes of action existing at the time the law is passed.” The case of People ex rel. Israel v. Tibbets (4 Cowen, 384) was an application by the attorney-generаl for leave to file an information in the nature of a quo warranto under an act to prevent fraudulent bankruptcies by incorporated companies and to facilitate proceedings against them, passed April 21, 1825. The statute altered the mode of the proceeding so as to ‍‌‌​​‌‌​‌‌​​‌‌​‌‌​‌​‌​‌‌​‌​‌​​‌​‌​‌‌​‌‌​​​‌​​‌‌​‌‍permit greater expedition, and thе question was whether it applied to a matter which had been instituted before its enactment. The Supreme Court held that it did, and that the statute was applicable to all cases within its purview, whether any incipient proceedings might have taken place before its passage or not. In Jacquins v. Commonwealth (9 Cush. 279) it was held that an act of the legislature relating to future proceedings by writs of error in criminal cases was not retroactive in an obnoxious sense because it related to writs of error on past judgments, inasmuch аs it dealt with a legal remedy. In Fisher v. Hervey (6 Col. 16) the question was whether a justice of the peace, under a recently enacted statute concerning garnishments, was authorized to issue garnishee process on a judgment rendered before the passage of the act. It was held that the statute was remedial in its character and *174 should be liberally сonstrued for the advancement of the remedy; and that it empowered justices of the peace to issue garnishee process on judgments rendered before the act was passed. This was notwithstanding that the first clause of the section of the, act might have been regarded as indicative of a design to confine its operаtions to future judgments, for it began with the words “ Whenever a judgment shall be rendered by any court of record or any justice of the peace,” etc.

The first question must, thereforе, be answered in the affirmative.

(2) The second question certified to us is whether the $l,000 a month received by the respondent from his employer were wages, earnings or salary within the meaning of section 1391 of the Code of Civil Procedure.

The opinion of the Appellate Division indicates that it had not considered or decided this question. Its ordеr of reversal was really based solely on the proposition ‍‌‌​​‌‌​‌‌​​‌‌​‌‌​‌​‌​‌‌​‌​‌​​‌​‌​‌‌​‌‌​​​‌​​‌‌​‌‍that the amendment of 1908 had no effect to authorize the issuance.of an execution against wаges, earnings or salary upon judgments already reco vered.

I was at first inclined to think that the affidavits upon the motion to vacate the order directing execution to issue presented such a conflict in the statements of fact regarding the conditions of the judgment debtor’s employment as to preclude us from answering, this second question; but upon further consideration I agree with a majority of my brethren that there is no substantial dispute as to what the arrangement really was and that the compensation received by the judgment debtor thereunder constitutes wages, earnings or salary under the Code provision in question.

The judgment debtor is employed as a salesman by a firm engagеd in the cloak business. His contract with his employers entitles him-to receive a commission of 6% on sales of merchandise made to his own customers and 2^ on all increases in sales made to customers whose names already appear on the books of the firm. He is paid $1,000 a month *175 in advance of the rendition of his services. At the end of the fiscal year if it is found that the sales effected by the judgment debtor entitle him to commissions in excess of the amount paid to him he receives the additional cоmmissions. If, on the other hand, he has been overpaid, the overpayment is charged against his future commissions. The arrangement amounts really to a contract for thе payment of wages in advance. The parties have measured the amount of the employee’s monthly wages by estimating the probable sum of his monthly commissions. Under the contract he is entitled to the payment of $1,000 at the beginning of the month ; and hence it would seem to be tolerably plain that his wages are due and owing to him when he reсeives them.

It follows that the second question must also be answered in the affirmative.

The order of the Appellate Division should be reversed and that of Special Term affirmed, with costs in both courts, and both questions certified answered in the affirmative.

Cullen, Ch. J., Edward T. Bartlett, Haight, ‍‌‌​​‌‌​‌‌​​‌‌​‌‌​‌​‌​‌‌​‌​‌​​‌​‌​‌‌​‌‌​​​‌​​‌‌​‌‍Vann, Hiscock and Chase, JJ., concur.

Ordered accordingly.