Garvey v. Larney

GIEGERICH, J. On November 7, 1907, the plaintiff obtained a judgment against the defendant in the Municipal Court for the price •of certain furniture previously sold and delivered to the defendant. The judgment was thereafter duly docketed in the office of the clerk of the county of New York, and an execution issued thereon was returned by the sheriff of said county wholly unsatisfied. On October 1, 1908, the plaintiff procured' an ex parte order from one of the justices of this court, directing the issuance of an execution against 10 per cent, of the salary of the defendant, who was and is the secretary •of the fire department of the city of New York. Such an execution was thereafter issued and was served upon the comptroller. The defendant now moves to vacate the order under which the execution was issued. Before the amendment of section 1391 of the Code of Civil Procedure, effected by chapter 148 of the Laws of 1908, it was essential that the judgment sought to be enforcd by an execution against wages or salary should have been recovered for necessaries or for work or services, and that such fact should be made to appear, by affidavit or otherwise, to the satisfaction of the judge granting the order. Laird v. Carton, 132 App. Div. 176, 116 N. Y. Supp. 851. In the present case the only papers recited in the order were certain affidavits, and an examination of those affidavits shows that no attempt was made to bring the case within the class mentioned in section 1391 of the Code as it stood before the recent amendment. Not only does the order itself fail to recite that the judge was in any manner satisfied of the facts necessary to bring the cáse within the provisions of the statute, but the papers upon which alone the order purports to have been made contain nothing in the way of evidence upon the point. ' It has been held that the amendment of 1908 does not affect or apply to judgments rendered before the amendment went into effect (Kelly v. Mulcahy, 131 App. Div. 639, 116 N. Y. Supp. 61; Laird v. 702 Carton, supra); and, as the facts before the judge who made the order were not sufficient to sustain it under the statute as it was when the judgment was rendered, the order must be vacated, but without costs.