#### Jeannette Demuth, Respondent, *v.*George Kemp, Appellant.

First Department,

February 19, 1909.

Execution against income from trust funds — section 1391, Code of Civil Procedure, not retroactive — constitutional law.

A judgment creditor cannot under section 1391 of the Code of Civil Procedure levy an execution on an income derived from a trust estate created before said section was amended so as to permit such executions.

Said section, not being in'express terms retroactive, will not be so construed, and : *it seems,*moreover, that if retroactive it would be unconstitutional.

Appeal by the defendant, George Kemp, from an order of the Supreme Court, made at the New York Special Term and entered ■ in the office of the clerk of the county of New York on the 7th day of January, 1909, denying the defendant’s motion to vacate an order directing that an execution issue under section 1391, of the Code of Civil Procedure.

*R. M. Farries,*for the appellant.

*L. Alexander,*for the respondent.

McLaughlin, J.:

The defendant appeals from an order denying his application to vacate and set aside an order made *ex parte*directing an execution to isshe pursuant to section 1391 of the"Code of Civil Procedure against ten. per cent of the income derived from a trust created for his benefit by the will of his father.

The affidavit on which' the order directing the issuance of the execution was granted alleges that the- plaintiff recovered a jndg*547menfc on the 14th of May, 1902; that execution was issued thereon, which was returned unsatisfied; that the father of the judgment debtor died on the 23d of November, 1893, leaving a last will and testament and codicil thereto, which were duly probated on the 27th of December, 1893, and by the will and codicil the testator gave to his executors in trust $150,000- to collect and receive the income therefrom and after paying 'the expenses connected with the care and management of the trust estate, to apply the balance to the use of the appellant herein; that thereafter the New York Life Insurance and Trust Company became, and is now, the trustee of said trust fund; and that there is now due or hereafter will become due to the defendant from the trustee an amount exceeding the sum of $12 per week, viz., the sum of $125 per week.

Upon this affidavit an order was made directing the issuance of an execution to the sheriff of the county of New York, commanding him to levy and- collect the plaintiff’s judgment out of ten per cent of the income derived from such trust estate in the hands of the insurance and trust company. A motion was thereafter made by the defendant to vacate such order, which was denied, and defendant appeals.

A question similar to the one presented by the appeal has already been passed upon by this court in *King*v. *Irving*(103 App. Div. 420) and *Sloane*v. *Tiffany*(Id. 540), and it was held that section 1391 of the Code of Civil Procedure, as amended by chapter 461 of the Laws of 1903, is not retroactive. And the second department, following these decisions, held in *Ringe*v. *Mortimer*(116 App. Div. 722) that this section of the act, as amended by chapter 175 of the Laws of 1905, did not have a retroactive effect. Since these decisions, the section was further amended by chapter 148 of the Laws of 1908, which took effect September first of that year. This amendment, however, is immaterial and in no way impairs the decisions theretofore made under the section. The trust created by the will of the defendant’s father took effect upon his death, which occurred on the 23d of November, 1893. It was a valid trust and he directed that the income from the trust fund should be paid to his son. Being a valid trust he had a right to direct to whom the income should be paid, and the Legislature had no power to change it or direct that payment should be made to any other person. A *548statute is not to be construed so as to have a retroactive effect unless its terms require that it should be so construed. *(New York*& *Oswego M. R. R. Co.*v. *Van*Horn, 57 N. Y. 473; *Bottjer*v. *Supreme*Council, 78 App. Div. 546.) There is nothing in this statute indicating that the Legislature intended it should apply to a trust created and which became effective prior to the passage of the act. And if such were the intent, the statute, in my opinion, would be unconstitutional inasmuch,as it would destroy at the time of its passage existing property rights, and this the Legislature does not have the power to do.

The order appealed from, therefore, should be' reversed, with ten dollars costs and. disbursements, and the motion granted, with ten dollars costs.

Ingraham, Laughlin, Clarke and Scott, J J., concurred.

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