The sun. [volume] (New York [N.Y.]) 1833-1916, 1910-07-26
THE Law or GaRvIsHsENT.


the cay court and = determination by the
! Appellate Term. in effect reVerse- the rulings
81 the Appellate Division Of thus depart b
nent In eases involving 'he collection of
trust in' ONE Whi'h that court had exempted
from the act
The 'a-. is that Of the Brrarley S',hool.
! Limited against beverley Ward On Sep
iemh"r 10. lsna tho plaintiff obtained a
/ judgment AGAINST the defendant whi"h WaS
duly do'ks'ed AMI execution thereon re-.
turned un~ati~hed Having as"ertaln-d
that defendant va. IN r,.,'eipt OF an in"ome
/ from trust estate created under tho last
| will OF Montagnie Maud admitted TO pro-
bate in Septrmber. 1879. the plaintiff applied
| for an order for special eve, luton against
said in"ome. pursuant to the PRO, iSionS OF
! -e''tion 1891 81 the Code 81 Civil Pro"eduro
J This was denied on tho ground that the
amendment. NhTh beCame operative in
, lON and by whi"h special execution
against trust income a. well a. against
wages. debts. earnings and salary was al.
| ihoriyed where = JUDGMENT for any cause
| had been recovered. did not apply 20 trusts
created before the passage Of the act The
Appellate Term then held that the legislation
. was retroactive and that - tho section
must he construed and held to DO appli.
cable to Income from trusts created prior
! To it, enactment II was unconstitutional
I II ~ this view which j. set AT naueht bv the
.
written nv Justice bowling. with whom his
| colleagues Clarke and Scott concur Justice
Mclaughlin writes a strong dissenting optn-
| ion. supporting the opinion below Of Justire
Whitney. and with them Presiding Justice
lngTaham concurs
Justice bowling finds that the amended
section neither impairs the value Of - vested
e-'ate nor deprives q person of vested
right in property. II has reference toa
change In the law governing exemptions Of
property from levy and sale by virtue Of
an execution. II Is we'll settled he OBJ
| serves. that q statute of exemption from
levy under an execution Is not a contract
between the state and the Judgment debtor
such an exemption IL Q Rratuity. not a vested
right IL may bs changed a. circumstance
may dictate He quotes aptly from
Georgia decision that debtors have % vested
night not - paw their debts What they
have aud what they acquire the State may
subject to legal process for the satisfaction
~ creditors II the state will furnish the
process and allow II TO run, nothing the
debtors own Is beyond its reach Eye'rp-
ton ~ property from levy and sale for the
payment of debts Ia hut privilege for IN.
time being mere grace aud very dependent
upon the will Of the state An exemption
~ i'h exists 10y statute NAV be reduced or
Withdrawn by statute The exemption.
the court proceeds. from having hts income
TRaEhaA a. 90 inn
which the defendant heretofore en- 'oved was
. favor syan,sd h,, ,h. ct. 49, ,.,,.,
a.. d.,.,J.,, - -. ,-,-,.. - -.
consideration II NAV therefore he iintte,i
or removed nv the state a. freely ~ u Va>
originally created
~" ease J. dlStthRni>hAhe from transfer
TAX cases where by -ub-epusnt legislation
~ Wa~ sought To- tax estates and right.
which had heretofore vested There mart
Of h.
person taxed and applied 10 A general or
publtc usa Us,s box.-., 80. ,,,.,,,.,,,.
= NOT turned over - tho pHhli" my IN"
h"h'"r - compelled - ~" part ~ his funds ,
IA instruments 10 rar INST debt which 10
ms 'onira"'~i ana VIII p b" would he com. /
PEELED a. once =" paw IN ful we've II not
Tor ne friendly inierNentl on 81 the state
'n-ti'" bowling concludes nv quoting 80
follows from IN" opinion In Laird ~ Carton. .
i"e Ne. which upheld the very section
- amended
The awsndrn-n, 10 s.c,io, 80, a.. ,sc ,,o,.
section - ~ stood he ,or. IN. s.r.,ar,.,, ,.f,,.
20 yroceehlnT~ IN lawsuit TIA, l. The execution
o'"nsl pro~-s> hence ~ i.astaru,~ deann x;wi,h A
lesai remedy. Il applies 20 al cases which hNy,
reached 'he ln'"ruedis'" stage hr'~c-n iudr
meat and execution N>ha> he-n pou'ed o.. ne
PhiANeo'oF' ~ we smendmrn' DOES not require
- 70 '"n,'' " - API'"eah'e "n'' IN 'n'" idF'
" w "o' ,nS' "r'h nc J'nsmen'
We. " 81 'oN'd NOV issue mere.
.,,.,',,n ~ 49, -, 'honsh
,~,no.,,., rso ,,,,,,,,,' -, w
issuSncr doe, no. ir7s me obiIs ton o. sny con
tract o. arect snv vested right u merely furnishes
the Judgment creditor With broader snt nor.
elective remedy 'han the IaV rave htr, before
To this there l. no constitutional ob'-~iion
such an arprcA ton OF the statutes l. not IN much
retroactive A. a~'lyr upon an e-istinS con iltion
~ things. 20 ait visiting Judgments Witch are
Vet ~ be enforced bV r,ec'.uon S~~ AI~o uv~r.
Moran ~ APO NV ~ Worse - Gould n .
y y. ~
,,. a.,
y" '"'A"''h W hr Hl>~h'lhs
'I'h"n ''A"@ ~''ep''"h '" w" Apph"a'lon |
W 'h~ ih'rh caae 10 me present situation.
mar case ne declares. lnNolN "d an eNecu-
ton merely against wares lie -'outlv /
insists that he Appellate Division should /
adhere to ~ former decisions IN she ,a-e-
VI D~nuth ~ Kemp Iln Ann DIV SEQ
king ~ Irving nos Ann ny 40, and
sloane ~ TIFFANY Io9 Ann INV ,.o, al a,
Witch ,,ses beld ,b,, Al q, a. So, ,,,,,.,.,,
VA. ,,n,.r,.J ,h. .,.,,,- - -, -,
80. =, =, =, =, =, =. '-.'..'',
~. 80, a.. -, :, -, - Una
- -. " W.. "-u w 'hr i.aI'
"'''""S y" ""-'"" M'iahRhln,
IVA 70" N"N "i inc Appellate DIVISION .
'h'' VI" '""" was nov RETROACTIVE was .
erroneous, " IN no WHN passed On The Other