Kelly v. Mulcahy

Appellate Division of the Supreme Court of New York

Kelly v. Mulcahy

131 A.D. 639, 116 N.Y.S. 61, 1909 N.Y. App. Div. LEXIS 867

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 8, 1909

StatusPublished

Cited by11 cases

This text of 131 A.D. 639 (Kelly v. Mulcahy) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelly v. Mulcahy, 131 A.D. 639, 116 N.Y.S. 61, 1909 N.Y. App. Div. LEXIS 867 (N.Y. Ct. App. 1909).

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Opinion

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, [640]*640without 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 pi-oviding 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.

Pattebson, P. J., Ingeaham, Laughlin and Scott, JJ., concurred.

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

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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, [640]*640without 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 pi-oviding 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.

Pattebson, P. J., Ingeaham, Laughlin and Scott, JJ., concurred.

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

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131 A.D. 639, 116 N.Y.S. 61, 1909 N.Y. App. Div. LEXIS 867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-mulcahy-nyappdiv-1909.

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