On appeal from the Supreme Court, whose per curiam is printed in 7 N.J. Mis. R. 233, and whose supplemental per curiam is printed in 7 N.J. Mis. R. 514.
For the appellant, Harry Levin.
For the respondent, George F. Seymour.
The opinion of the court was delivered by
WALKER, CHANCELLOR. This was a suit in the Orange District Court, wherein it was alleged that the defendant, a constable of Essex county, acting as agent for the Black & White Operating Company, under a writ of attachment issued out of the Second District Court, levied on the goods of Eva Fay, a non-resident of New Jersey, who later paid to the defendant the sum for which the attachment issued; whereupon the proceedings under the writ were discontinued. The plaintiff then requested the defendant to turn over to it the sum so collected as aforesaid, but the defendant continuously refused to pay it over.
From the states of the case, both original and supplemental, the following is made to appear.
Frank Kaul, president of the plaintiff corporation, signed an affidavit in the attachment suit in the District Court. Harry Levin, attorney, drew and had Kaul sign the affidavit and directed Grosbart, constable, to serve the process. The attachment was issued out of the Second District Court, endorsed in the name of Levin, as attorney, and Grosbart, constable, served it. The money demanded was paid to Grosbart under protest; he turned the cash over to Levin, attorney, in whose name the process was endorsed. When the case came up in the District Court, Kaul, president, attended and saw and heard Levin, acting as attorney for the corporation, discontinue the matter because the money had been paid. Thereafter Levin sent to the plaintiff corporation an accounting for the moneys so received, deducting the amount of his fees; but the plaintiff insisted that it had never retained Levin nor Grosbart, and sued the constable for the moneys he had received.
Kaul, president of plaintiff, testified that he took the bill against Fay to the office of a constable named Solsky, where the defendant Grosbart also had his office, and left the bill for collection (not saying with or for whom he left it); that an attachment was issued out of the Second District Court of Newark on the effects of Fay, and it was settled by payment of the amount to the defendant Grosbart under protest;
that Grosbart never paid the money to the plaintiff; that he saw Levin in the office but did not employ him to take the attachment case or collect the claim against Fay, but that he employed only the constable (not saying whom), and did not want an attorney.
Emil Grosbart, defendant, testified that he was a constable and handled the Fay case at request of Levin, attorney; that after the issuance of the writ of attachment defendant paid him the money under protest; that the work in Levin's office, in relation to the attachment, was by I. V. Davis, an attorney, with desk room with Levin.
Davis testified that he is an attorney; that he saw Kaul at his office with reference to the Fay matter; that he handled the matter; that Kaul told him to go ahead with the writ of attachment; that Levin was not present; that he called Grosbart and instructed him to take out the writ of attachment; that Kaul told him Satsky was not in and he had to have immediate action.
Harry Levin testified that he is an attorney-at-law; that Davis handled the Fay matter; that Grosbart turned over to him the money paid under protest by Fay; that she having paid, there was nothing further to do in the matter; that he (Levin) sent a ...