Laird v. Carton

Citation89 N.E. 822,196 N.Y. 169
PartiesLAIRD v. CARTON et al.
Decision Date19 October 1909
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, First Department.

Action by Fannie S. Laird, administratrix of Richard R. Laird, deceased, against Andrew B. Carton and others. From an order of the Appellate Division (132 App. Div. 176,116 N. Y. Supp. 851), reversing an order allowing an execution to issue, plaintiff by permission appeals, and the Appellate Division certify questions. Questions answered, and the order of the Appellate Division reversed, and the order of the Special Term affirmed.

The Appellate Division in the order granting leave to appeal to this court certified the following questions:

‘First. Was the order, herein appealed from to the Appellate Division, of Mr. Justice Fitzgerald, entered in the county clerk's office of New York county, March 23, 1909, denying the motion to vacate the order of Mr. Justice Mitchell L. Erlanger, dated January 28, 1909, authorizing the issuance of an execution under section 1391 of the Code of Civil Procedure, as amended by chapter 148 of the Laws of 1908, taking effect September 1, 1908, proper and valid, although the judgment upon which said order for the writ of execution herein was obtained was entered prior to September 1, 1908, when said amendment to section 1391 of the Code of Civil Procedure took effect?

‘Second. Were the moneys advanced to the defendant appellant in this action earnings, wages, or salary, within the meaning of section 1391, Code Civ. Proc., permitting the appropriation of 10 per cent. thereof toward the payment of the plaintiff respondent's judgment herein?’Jabish Holmes, for appellant.

L. Gainsburg, for respondents.

WILLARD BARTLETT, J. (after stating the facts as above).

Prior to September 1, 1908, an execution to reach the wages, debts, earnings, or salary due and owing to the judgment debtor could be issued under section 1391 of the Code of Civil Procedure only where the judgment had been recovered wholly for necessaries sold or work performed as a domestic, or for salary owing to an employé of the judgment debtor. By an amendment to that section, which took effect on September 1, 1908 (Laws 1908, p. 433, c. 148), such an execution was made issuable on any money judgment.

1. The first question certified by the Appellate Division is whether such an execution, namely, an execution against wages, debts, earnings, or salary, can lawfully be issued upon a judgment recovered before September 1, 1908. Or was the amendment designed to authorize such executions only upon judgments which should be recovered after that date? An execution is a remedy; it is a remedial process. Statutes regulating legal remedies are generally construed as operative upon an existing condition of things, as well as upon conditions to arise after their enactment. ‘Where a new statute deals with procedure only, prima facie it applies to all actions-those which have accrued or are pending and future actions.’ Sutherland on Statutory Construction, p. 630. Section 1391 of the Code of Civil Procedure, as amended in 1908, begins with the words: ‘Where a judgment has been recovered,’ etc. There is nothing in the language of the amendment to indicate a legislative intention that the right to issue execution against wages, earnings, or salary shall be confined to cases in which the judgments are hereafter to be recovered. It is enough that a judgment ‘has been recovered’ when the execution is sought to be issued. A difference of opinion has arisen between the Appellate Division in the First Department and the Appellate Division in the Second Department in regard to this question. The views of the Appellate Division in the First Department are expressed in the opinion in the present case, and in Kelly v. Mulcahy, 131 App. Div. 639,116 N. Y. Supp. 61. The views of the Appellate Division in the Second Department are set forth in Myers v. Moran, 113 App. Div. 427,99 N. Y. Supp. 269. We have reached the same conclusion as that arrived at by Mr. Justice Jenks in that case, to wit, that under section 1391 of the Code of Civil Procedure, as amended in 1908, the court may allow execution to issue against wages, although the judgment upon which the execution is sought was rendered before the enactment of the amendment.

The amendment to section 1391, like the whole section as it stood before the amendment, relates to proceedings in a lawsuit, i. e., the execution or final process; hence it is a statute dealing with a legal remedy. It applies to all cases which have reached the intermediate stage between judgment and execution. As has been pointed out, the phraseology of the amendment does not require us to construe it as applicable only to future judgments. It matters not that when the judgment was recovered, an execution could not issue thereon against wages, earnings, or salary; it is enough that such an execution has subsequently been authorized. The statutory authorization for its issuance does not impair the obligation of any contract, or affect any vested right; it merely furnishedthe judgment creditor with a broader and more effective remedy than the law gave him before. To this there is no constitutional objection. Such an application of the statute is not so much retroactive as active upon an existing condition of things, to wit, existing judgments which are yet to to enforced...

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35 cases
  • Slewett & Farber v. Board of Assessors
    • United States
    • New York Supreme Court — Appellate Division
    • April 8, 1981
    ...such statutes are generally applied retroactively to pending actions (see, e. g., Preston Co. v. Funkhouser, supra; Laird v. Carton, 196 N.Y. 169, 89 N.E. 822; Peace v. Wilson, 186 N.Y. 403, 79 N.E. 329; Lazarus v. Metropolitan El. Ry. Co., 145 N.Y. 581, 40 N.E. 240; cf. Jacobus v. Colgate,......
  • Jacobus v. Colgate
    • United States
    • New York Court of Appeals Court of Appeals
    • February 22, 1916
    ...of the form of remedies-are said to constitute an exception (Lazarus v. Met. E.R. Co., 145 N.Y. 581, 40 N.E. 240;Laird v. Carton, 196 N.Y. 169, 89 N.E. 822, 25 L.R.A. [N.S.] 189), but that exception does not reach a case where before the statute there was no remedy whatever (Kelley v. B. & ......
  • Brainard v. Coeur D'Alene Antimony Mining Co.
    • United States
    • Idaho Supreme Court
    • August 2, 1922
    ...a motion to set aside a default judgment applied to a motion addressed to a judgment rendered before the statute went into effect. In Laird v. Carton, supra, the court appeals of New York held that a statute abolishing the exemption from execution of certain personal property applied to exe......
  • Ruecking Construction Co. v. Withnell
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    • Missouri Supreme Court
    • January 17, 1917
    ... ... 524; State ex rel. v. Stuart, ... 111 Mo.App. 478; Oil Co. v. Beacham, 120 P. 969; ... Darling v. Miles (Ore.), 112 P. 1084; Laird v ... Carton, 196 N.Y. 169; Haarstick v. Gabriel, 200 ... Mo. 237. (9) The constitutional provision against ... retrospective legislation does ... ...
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