Brearley School, Ltd. v. Ward

Dowling, J. :

Plaintiff obtained a judgment'against the defendant in the City Court of the city of New York on September 17, 1909, for the sum of $727.63, which was duly docketed and the execution issued thereupon was returned unsatisfied. Having ascertained that defendant was in receipt of an income from a trust estate created under the last will and testament of Montagnie Ward, deceased (admitted to probate September' 6, 1879), plaintiff applied to the City Court on December '7, 1909, for ah order for a special execution against said income pursuant to the provisions of section 1391 of the Oode of Civil Procedure. It is not questioned that the application complied, in all respects, with the requirements of the section. It was denied upon, the grbund that the amendment of the section which went into effect on September 1, 1908 (Laws of 1908, chap. 148), and by .which a special execution against trust income, as well as against, wages, debts, earnings and salary, was authorized where a judgment for any causé had been recovered (thus extending the prior authority [Laws of 1903, chap. 461; Laws of 1906, chap. 175] for such an execution only in the case of a judgmerit for necessaries), did not apply to trusts created before the passage of the act. The Appellate Term (67. Misc. Rep. 163) held that the legislation was retroactive, and that as the section must be so construed and held to be applicable to income from trusts created prior to its enactment, it was unconstitutional. From this determination the present appeal is taken.

At the outset it may be said that the amendment of section 1391 doéSLnot'iÍnpá!Íf the value of a vested estate nor deprive any one of a véáiéd5 n|rht in property. It has reference to a change in the provisiBhs of law governing exemptions of property from levy and sale by-virtue of'an execution, which are found in chapter 13, title 2, article1 % of the Oode of Civil Procedure, sections 1389 to 1404a inclusive —'■ the last section being added by chapter 65 of the Laws of 1909. It is well settled that a statute of exemption from levy under an exe-. cution is not a contract between the State and the judgment debtor. Such an exemption is a gratuity, not a vested right, and it may be changed' as circumstances may' dictate. (Myers v. Moran, 113 App. Div. 427.) “ Of course, it could not be said that if a man purchased' a farm, and at the time it was exempt from execution by levy from creditors, the Legislature would have no right thereafter to remove or alter that exemption.” (Kittel v. Domeyer, 70 App. Div. 139.) As was said in the case of Harris v. Glenn (56 Ga. 94); “ Debtors have no Vested right not to pay their" debts. What they have and what they acquire the State may subject to legal process for the. satisfaction of creditors. If the State will furnish ■the process and allow it to run, nothing that debtors own is beyond its reach. * * * Exemption, of .property from levy and sale for the payment of debts is but a privilege for the time being — mere grace and favor, dependent on the will of the State. An exemption which exists by statute may be reduced or withdrawn by statute.” “ Statutory exemption of a debtor’s property from levy and sale for the payment of his debts is a mere privilege for the time being, dependent upon the will of the State, and not a vested right, and in the absence of constitutional restrictions the Legislature may modify or wholly repeal exemption laws, even as to existing property and debts. * * * Modification or repeal of an exemption law does not impair the obligation of any contract- as to creditors, but on the contrary it enlarges their remedy. ' And it is not objectionable as impairing the obligation of contracts as regards the debtor, for there - is no contract giving him an exemption.” (12 Am. & Eng. Ency. of Law [2d ed.J, 74.) The exemption from having his income from the trust estate reached by execution which the defendant has heretofore enjoyed is a favor granted by the State, for which neither he nor the testator gave any consideration, and which may be limited or removed by the State as freely as it was originally created.

The distinction seems clear between transfer tax cases, where by subsequent legislation it was sought to tax estates aúd rights which had theretofore vested, as in Matter of Pell (171 N. Y. 48) and the casé at bar. In the former instance a- part of the property was taken directly from the peréon taxed and applied to a public and general use; in the latter no part of the income sought to be reached by execution is divested tp a general use, but the debtor is compelled to use a portion of his funds in installments to satisfy a just debt which he has contracted, and which he would he compelled to. pay at once in full were it not that the State has given him as to that fund an immunity from the seizure under execution which it deems wise to limit and retrench. There never was any contract between the debtor and the State that the original immunity from levy would be preserved, as there never was any contract between the testator and the State that existing laws at the time of his decease should remain unchanged so far as affected the interests of those for whom he created a trust. The legislation by which the exemption of wages and trust income from levy under an execution was first abridged to the extent of ten per cent when a judgment for necessaries had been recovered, and then similarly abridged in the case of any judgment, was purely remedial in its nature. As was said in Laird v. Carton (196 N. Y. 172) in reference to this very section: “ The amendment to section 1891, 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 furnished the 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 só much retroactive as active upon an existing condition of things, to wit, existing judgments which are yet to be enforced by execution.” (See, also, Myers v. Moran, 113 App. Div. 427; Morse v. Goold, 11 N. Y. 281.)

It follows, therefore, that the order of the City Court and the determination, of the Appellate Term must be reversed, with costs to appellapt in all"the courts, and the application for leave to issue a special execution granted, with ten dollars costs.

• Clarke, and Scott, JJ., concurred; Ingraham, P. J., and McLaughlin, J., dissented.