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Shore Loan Association v. Bonforte

New Jersey Supreme Court


Decided: July 20, 1933.

SHORE LOAN ASSOCIATION, RESPONDENT,
v.
ALFRED BONFORTE AND CONCETTA BONFORTE, APPELLANTS

On appeal from order making absolute a rule to show cause why certain moneys owing to one of the judgment debtors should not be paid to the constable holding a writ of execution.

For the appellants, Thomas P. McKenna.

For the respondent, John C. Giordano and Julius Golden.

Before Justices Parker, Lloyd and Perskie.

Parker

[111 NJL Page 146]

The opinion of the court was delivered by

PARKER, J. The appeal purports to be from the "Decision" of a District Court "making absolute a rule ordering the said [appellants] to pay" to a constable holding the execution against them in this cause, certain moneys required to satisfy said execution.

Appellants do not dispute the judgment. From the confused and incomplete record presented to us, we gather that after judgment was regularly entered, there were an original, an alias, and a pluries execution, and that the last was returned May 23d, 1932, with levy on rents to accrue to defendant Concetta on July 15th and August 15th, 1932, from one George Gordon, tenant. Upon this return the court, on November 4th, ruled Gordon and Concetta Bonforte to show cause on November 18th, 1932, why sufficient of said rents (then accrued) should not be paid to the constable to satisfy

[111 NJL Page 147]

the execution; and on December 4th made the rule absolute. The appeal is from this last order of December 4th; and for the appellants it is argued (by brief) that the levy on rents not due or accrued was without legal effect, and consequently that there was error in the order of December 4th.

It is a sufficient answer for present purposes to say that the order in question is not reviewable by appeal, but only by certiorari. Gordon v. Pannaci, 90 N.J.L. 392; Oetjen v. Hintemann, 91 Id. 429. This was the course taken in Berkowitz v. First District Court, 108 Id. 345.

The proceeding appears to have been taken under section 9 of the supplement to the District Court act (Pamph. L. 1924, pp. 429, 430, copied from Pamph. L. 1915, p. 182). It may be that rent not yet due may not be "rights and credits" subject to execution by virtue of sections 1 and 2 of those acts.

We incline to think, however, that under Pamph. L. 1915, p. 470 (copied into the District Court act -- Pamph. L. 1924, p. 431), debts due or thereafter becoming due -- see the language of the act -- may be reached by execution specially ordered by the court pursuant to that act, which is repeated as sections 11 and 12 of the above act of 1924. But neither point is properly before us, and neither is decided.

For the reason stated above, the appeal is dismissed as not properly taken.

19330720


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