Osterhoudt v. Stade

117 N.Y.S. 809 | N.Y. App. Div. | 1909

Scott, J.:

The appellant is a Stató officer, to wit, Assistant Factory Inspector of the State of New York. On'April 27, 1907, the plaintiff recovered a judgment against him in an action upon a promissory note. On February 4, 1908, an ex parte order was made by. a justice of the Supreme Court' directing .that an execution issue to the sheriff of Albany county, pursuant -to-section 1391 of the Code of Civil Procedure, against the wages, earnings and salary of the appellant due and owing'to him, or which shall thereafter become due and owing to him through.the State Comptroller at Albany.

The present appeal is from an order denying appellant’s motion to vacate the above order and the execution entered under it. The judgment sought to "be collected Avas recovered prior to' the passage of chapter 148 of the Luavs of 1908, when the statute (as amd. by Laws of 1905, chap.. 175) permitted an execution against wages or salary to issue only when the judgment Avas for necessaries furnished or work performed in a family as a domestic. By the amendment of 1908 the. section is made-applicable'to any judgment, provided the wages or salary of. the judgment debtor amount to- twelve dollars or more per week. We have already decided that the amendment is not retroactive, and does not permit the issuance of an execution against wages or salary upon a judgment recovered before the adoption of the amendment' unless the judgment, was of. the character described in the act before it was amended. (Kelly v. Mulcahy, 131 App. Div. 639.)

There is another reason why the execution, may not stand.. Prior to 1905 the section (as amd. by Laws of 1903, chap. 461) permitted the collection upon such an execution from the “ person or corporation ” employing the judgment debtor, and to whom the execution was presented. It was held'that this did not permit the collection of salary payable to an officer or employee of a municipal corporation. (Rosenstock v. City of New York, 101 App. Div. 9; Emes v. Fowler, 43 Misc. Rep. 603.) These decisions rested, upon the broad proposition that, is settled beyond dispute that, in the absence of express legislative authority, the wages or salary of a public employee or officer, although due, cannot be reached before it comes into his possession, either by execution or by supplementary pro-' ceedings on behalf of the judgment creditor. (Bliss v. Lawrence, 58 N. Y. 442.) Hence it was considered that, although a municipal corporation is in a sense and for many purposes a corporation, it was not to be presumed that the Legislature intended to include a municipal corporation within the scope of the statute. By cliapr ter 175 of the Laws of 1905, the section was amended, and it now jnovides for collecting a judgment out of the salary or wages of the judgment debtor due or to become due to him from any person or corporation, municipal or otherwise. . Still, the statute does not meet the case here presented. The judgment' debtor is a State officer, and the reasons against collecting a judgment out of the salary of a public officer apply with full force to him. Doubtless the Legislature can, by appropriate provision, extend this act to such an officer, but in our opinion it has not done so. The State is neither a person nor a corporation, as that term is ordinarily used, and is certainly not a municipal corporation. The same reasoning which led to the conclusion that the section before 1905 did not apply to the salary of a municipal officer would lead to the conclusion that it did not apply to the salary of a State officer, and the amendment of 1905 did not bring the salary of a State officer within the purview of the section.

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

Inge ah am, McLaughlin, Laughlin and Clabke, JJ., concurred.

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