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Berkowitz v. First District Court of Jersey City

Decided: October 19, 1931.

WILLIAM BERKOWITZ, APPELLANT,
v.
FIRST DISTRICT COURT OF JERSEY CITY AND AUGUST ZIEGENER, JUDGE OF SAID COURT, RESPONDENTS



On appeal from the Supreme Court, whose per curiam is printed in 8 N.J. Mis. R. 847.

For the appellant, Lionel P. Kristeller and Saul J. Zucker (George H. Rosenstein, on the brief).

For the respondents, McCarthy & McTague (Frank F. McCarthy, on the brief).

Daly

The opinion of the court was delivered by

DALY, J. This is an appeal from an order entered in the New Jersey Supreme Court on November 24th, 1930, affirming an order of First District Court of Jersey City made July 15th, 1930, which had been taken to the Supreme Court by a writ of certiorari for review. The order in the District Court was made in proceedings supplementary to execution and directed William Berkowitz, the appellant, a judgment debtor, to pay to Joseph L. Cunningham, his judgment creditor,

"the sum of $30 each and every week out of his earnings * * * until the sum of said judgment together with interest and costs was fully paid and satisfied." This order, according to the Supreme Court opinion, is under section 11 of the supplement to the District Court act of 1898. Pamph. L. 1924, p. 429. Cunningham had recovered judgment against Berkowitz for $335.91, and execution was issued thereon and returned unsatisfied.

The Supreme Court discussed and passed upon only one point. It appeared that prior to the order made by the District Court, there had been an order made by a Supreme Court justice, directing the employers of Berkowitz to pay ten per cent. of his salary, as earned, upon a judgment of the Elizabethport Banking Company in the sum of $30,000, recovered in a Supreme Court action. Berkowitz, the appellant, and judgment debtor, contended before the Supreme Court that the execution under the judgment in the District Court could not be enforced against his salary until the execution under the Supreme Court judgment had been satisfied.

The Supreme Court held that the order of the District Court was entered pursuant to a supplement to the District Court act (Pamph. L. 1924, p. 429, ยง 11 -- at p. 431), as follows:

"11. Hereafter when a judgment has been recovered in any District Court of this state and where an execution issued upon said judgment has been returned wholly or partly unsatisfied and where any wages, debts, earnings, salary, income from trust funds, or profits are due and owing to the judgment debtor, or shall thereafter become due and owing to him to the amount of eighteen dollars or more per week, the judgment creditor may apply to the court in which said judgment was recovered, without notice to the judgment debtor and upon satisfactory proofs of such facts by affidavits or otherwise, the court must grant an order directing that an execution issue against the wages, debts, earnings, salary, income from trust funds, or profits of said judgment debtor, and on presentation of such execution by the officers to whom delivered for collection to the person or persons

from whom such wages, debts, earnings, salary, income from trust funds or profits are due and owing, or thereafter become due and owing, to the judgment debtor, said execution shall become a lien and a continuing levy upon the wages, debts, earnings, salary, income from trust funds or profits due or to become due to said judgment debtor to the amount specified therein, which shall not exceed ten per centum unless the income of said debtor shall exceed the sum of one thousand dollars per annum, in which case the judge may order a larger percentage, and said levy shall become a continuing levy until said execution and the expenses are fully satisfied and paid or until modified as hereinafter provided, but only one execution against the wages, debts, earnings, salary, income from trust funds or profits of said judgment debtor shall be satisfied at one time, and where more than one execution has been issued or shall be issued pursuant to the provisions of this section against the same judgment debtor they shall be satisfied in the order of priority in which such executions are presented to the person or persons from whom such wages, debts, earnings, salary, income from trust funds or profits are due and owing." (Italics ours.)

Now, section I of the supplement to the Executions act (Pamph. L. 1915, p. 470), the section under which the Supreme Court execution against the wages of Berkowitz was issued is almost identical, word for word, with section 11 of the supplement to the District Court act, just fully recited. The appellant argued these statutes were of the same substance; on the same subject; having the same purpose, and should be construed together as together constituting one law, and therefore that only one execution against wages could be in operation at one time, and that such ...


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