Hedges v. Keiser

135 A.D. 12, 119 N.Y.S. 751, 1909 N.Y. App. Div. LEXIS 3893

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 1909
• Status: Published

Opinion

McLaughlin, J.:

On the 29th of May, 1908, plaintiff recovered a judgment against the defendant for money loaned, upon which an execution was issued and returned wholly unsatisfied. On the 30th of November, 1908, an order was made directing the issuance of an execution against the salary of the defendant to the extent of ten per cent. The execution was issued and a levy made. On the 19th of. July, 1909, defendant moved to vacate the execution. The motion was opposed upon the ground that section 1391 of the Code of Civil Procedure, as amended by chapter 148 of the Laws of 1908, which permits an execution to be issued against salary, did pot take effect until after the entry of the judgment, and that the statute did not have a retroactive effect. The motion was granted and the execution vacated, the learned justice at Special Term evidently relying upon the' decisions of this court in Kelly v. Mulcahy (131 App. Div. 639) and Laird v. Carton (132 id. 176). Since the decision of - the motion which resulted in the order here appealed from, Laird v. Carton (supra) has been reversed by the Court of Appeals (196 N. Y. 169), that court holding that there is nothing in the language of the statute which indicates a legislative intent to limit an execution to judgments recovered subsequent to the time the statute went into effect.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion to vacate denied, with ten dollars costs.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

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