Laird v. Carton

116 N.Y.S. 851 | N.Y. App. Div. | 1909

Ingraham, J.:

The plaintiff ,recovered a judgment against the defendant Andrew B. Carton which was entered and docketed in the office of the clerk of the county of the Hew York on the 29th of April, 1908, for $5'59.25. Execution having been issued upon this judgment and returned unsatisfied the plaintiff on January 28,1909, obtained an ex parte order allowing an execution 'to issue' against the salary due or to grow due to the judgment debtor from his employer óf ten per cent of such salary. Such application was granted under the provisions of section 1391 of the Code of Civil Procedure, as amended by chapter 148 of the Laws of 1908, which went into effect on September 1, 1908.

By this section, of the Code as it existed prior to the amendment which went into effect on September 1, 1908, such an order could be granted only where the judgment sought to be enforced had been recovered wholly for necessaries sold or work performed in a family as a domestic, or for services rendered for salary owing to an employee of the judgment debtor. As it does not appear in this proceeding that the judgment was recovered for one of the causes of action specified in the section as it existed prior to September 1,1908, the judgment creditor was not entitled to such an order. (Kelly v. Mulcahy, 131 App. Div. 639.) As this case appears to come within the principle there decided the plaintiff was not entitled to this order, the amendment of 1908 having no retroactive effect and applying only to judgments obtained after the amendment took effect.

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

McLaughlin, Loughlin, Clarke and Scott, JJ., concurred.

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