Kelly v. Mulcahy

Full title: JAMES KELLY, as Administrator, etc., of CATHERINE KELLY, Deceased…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 8, 1909

131 App. Div. 639 (N.Y. App. Div. 1909)

116 N.Y.S. 61

Opinion

April 8, 1909.

John H. McCrahon, for the appellant.

Alfred Steckler, for the respondent.

McLAUGHLIN, J.:

The plaintiff, on the 9th of March, 1907, in an action to recover damages for the death of his intestate caused by the negligence of the defendant, recovered a judgment against him for a substantial sum. On the 12th of December, 1908, execution upon the judgment having been issued and returned unsatisfied, the plaintiff, without notice to the defendant, applied under section 1391 of the Code of Civil Procedure to and obtained from the court an order directing that an execution issue against the salary of the defendant. The defendant moved upon notice to vacate the order, which was denied, and he appeals.

This section, when the judgment was recovered, provided among other things that in order to obtain an execution against the wages or salary of the judgment debtor, the judgment must have been obtained wholly for necessaries furnished or work performed in a family as a domestic. (See Laws of 1905, chap. 175.) An execution against the salary of the defendant could not have been issued when the judgment in this action was recovered, because it was for the damages caused by his negligence. ( Neuman v. Mortimer, 98 App. Div. 64.) This section has, however, since then been amended (Laws of 1908, chap. 148) by providing that an execution may issue against the wages or salary of the judgment debtor where such wages or salary amount to twelve dollars per week or more. But the amendment did not apply to judgments recovered before it took effect, which was September 1, 1908. It does not have a retroactive effect, and, as this court has several times held, applies only to judgments recovered after that statute went into effect. ( King v. Irving, 103 App. Div. 420; Sloane v. Tiffany, Id. 540; Ringe v. Mortimer, 116 id. 722; Demuth v. Kemp, 130 id. 546.)

The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs.

PATTERSON, P.J., INGRAHAM, LAUGHLIN and SCOTT, JJ., concurred.

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