Brearley School, Ltd. v. Ward

121 N.Y.S. 691

Opinion

WHITNEY, J.

This is an application by a judgment creditor, under section 1391 of the Code of Civil Procedure as amended in 1908, to reach the income of a fund bequeathed in 1877 to trustees to invest and to “pay over the net income or interest * * * in quarterly payments” to the judgment debtor. I think that the amendment of 1908 had a retroactive effect so far as the intent of the Legislature is concerned, and that the cases relied upon as the basis of the decision to the contrary in Kelly v. Mulcahy, 131 App. Div. 639, 116 N. Y. Supp. 61, followed by Laird v. Carton, 132 App. Div. 176, 116 N. Y. Supp. 851, were overruled, so far as they construed the intent of the statute, when the latter decision was reversed in 196 N. Y. 169, 89 N. E. 822.

But the question still remains whether the statute as thus construed is constitutional so far as it applies to a trust theretofore created. The class of trusts to which this belongs came into the law of our state rather accidentally, by judicial construction of a passage in the Revised Statutes of 1830 (Leggett v. Perkins, 2 N. Y. 297, 321, 329; Gray on Restraints on the Alienation of Property [3d Ed.] Appendix 1A). The Revised Statutes themselves permitted the income to be reached by creditors to a certain extent. Williams v. Thorn, 70 N. Y. 270; Tolles v. Wood, 99 N. Y. 616, 1 N. E. 251. But whether they are to be construed as preventing future legislation from further extending the remedies of creditors is a question which is probably settled in the affirmative. See Metcalfe v. Union Trust Co., 181 N. Y. 39, 73 N. E. 498. Certainly so in this department. Sloane v. Tiffany, 103 App. Div. 540, 542, 93 N. Y. Supp. 149; Demuth v. Kemp, 130 App. Div. 546, 115 N. Y. Supp. 28.

The order should be affirmed, with $10 costs and disbursements. All concur.