Hatch v. Wolff

This action was brought against defendants as the employers of one Armand Wolff. Plaintiff had recovered a judgment against Armand Wolff on July 10, 1906, which judgment was duly docketed, and shortly thereafter execution duly issued and returned unsatisfied. The action in which that judgment was *52obtained was based upon a previous judgment in favor of plaintiff, entered July 8, 1889, in the City Court of Brooklyn. In September, 1908, plaintiff obtained an order and execution against the salary of said Armand Wolff under section 1391 of the Code of Civil Procedure, which was duly served in October, 1908, upon the defendants directing them to pay to the sheriff $3.50 weekly, that being ten per cent, of Armand Wolff’s alleged salary. Plaintiff alleges that on October 15, 1912, there was due and payable under the order and execution from the defendants $731.50.

The only point made by respondents in support of the direction of a verdict in their favor is the citation of the last clause of section 1391 as amended by Laws of 1911, chapter 532, which provides that the section ‘ ‘ shall not apply to judgments recovered more than ten years prior to September 1, 1908.” As the judgment under which this execution was levied was recovered in 1906, it does not fall within the exception stated, and I am not pointed to any provisions- express or implied which extend the exception to the date of the recovery of an original judgment upon which subsequent judgments may be based. Moreover, the other part of the same clause of the section, namely, ‘ ‘ that any execution theretofore issued upon such judgments shall cease to be a lien iohen this act takes effect ” (September 1, 1911), would, in any event, entitle the plaintiff to recover the amount due from defendants for the period from October 15, 1908, until September 1, 1911.

Seabury and Lehman, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.