
    Fannie S. Laird, as Administratrix, etc., of Richard R. Laird, Deceased, Respondent, v. Andrew B. Carton, Appellant, Impleaded with A. B. Carton Company, Defendant.
    First Department,
    May 7, 1909.
    Execution —judgment debtor’s salary — amendment to section 1391 of the Code of Civil Procedure not retroactive.
    The amendment to section 1391 of the Code of Civil Procedure, made by chapter 148 of the Laws of 1908, allowing an execution upon a salary due the judgment debtor, although the judgment was not recovered wholly for necessaries or for work performed, as a domestic, etc., is not retroactive. Hence, such execution cannot be issued on a judgment entered prior to September 1, 1908, when the amendment went into effect, unless it appears that it was recovered on one of the claims on which such execution was authorized prior to the amendment.
    Appeal by the defendant, Andrew B. Carton, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of March, 1909, denying the said defendant’s motion to vacate and set aside ah order attaching his salary and issuing a writ of execution against the same, pursuant to section 1391 of the Code of Civil Procedure.
    
      I. Gainsburg, for the appellant.
    
      Jabish Holmes, for the respondent.
   Ingraham, J.:

The plaintiff ,recovered a judgment against the defendant Andrew B. Carton which was entered and docketed in the office of the clerk of the county of the Hew York on the 29th of April, 1908, for $5'59.25. Execution having been issued upon this judgment and returned unsatisfied the plaintiff on January 28,1909, obtained an ex parte order allowing an execution 'to issue' against the salary due or to grow due to the judgment debtor from his employer óf ten per cent of such salary. Such application was granted under the provisions of section 1391 of the Code of Civil Procedure, as amended by chapter 148 of the Laws of 1908, which went into effect on September 1, 1908.

By this section, of the Code as it existed prior to the amendment which went into effect on September 1, 1908, such an order could be granted only where the judgment sought to be enforced had been recovered wholly for necessaries sold or work performed in a family as a domestic, or for services rendered for salary owing to an employee of the judgment debtor. As it does not appear in this proceeding that the judgment was recovered for one of the causes of action specified in the section as it existed prior to September 1,1908, the judgment creditor was not entitled to such an order. (Kelly v. Mulcahy, 131 App. Div. 639.) As this case appears to come within the principle there decided the plaintiff was not entitled to this order, the amendment of 1908 having no retroactive effect and applying only to judgments obtained after the amendment took effect.

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

McLaughlin, Loughlin, Clarke and Scott, JJ., concurred.

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