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Passaic National Bank and Trust Co. v. Eelman

Decided: March 3, 1936.

PASSAIC NATIONAL BANK AND TRUST COMPANY, A NATIONAL BANKING ASSOCIATION, PLAINTIFF,
v.
GARRET EELMAN, SR., MARIE R. EELMAN, GARRETT EELMAN, JR., AND WILLIAM C. EELMAN, DEFENDANTS



On rule to show cause.

For the plaintiff, Jerome Alper (Samuel B. Friedman, of counsel).

For the defendant Garret Eelman, Sr., and the police and fire pension commission of the city of Passaic, Joseph J. Weinberger.

Before Justice Heher, at the Passaic Circuit.

Heher

HEHER, J. The decisive question is whether pension moneys payable to a retired police officer, in semi-monthly installments at the rate of $110.25 per month, from the fund created by and maintained under the provisions of chapter 160 of the laws of 1920 (Pamph. L., p. 324), as amended by chapter 171 of the laws of 1935 (Pamph. L., p. 405), are the subject of garnishment or levy under the special statutory execution to satisfy a judgment standing against the pensioner.

The inquiry is largely one of statutory construction. And these are the pertinent statutes:

Section 24 of the act respecting executions, as amended by chapter 99 of the laws of 1933, provides that if, in discovery proceedings had under section 23 of the act, likewise amended by the statute last referred to, it be disclosed that the "judgment debtor is entitled to, and is in receipt of, an income or any property or money or things in action, held in trust for the debtor, except such trust funds as are now exempt by law," the court shall have power "to direct the judgment debtor to make payments at stated periods in installments, and upon such terms and conditions as the said judge may direct, out of such income, on account of said unsatisfied judgment." 2 Comp. Stat., p. 2250; Pamph. L. 1933, p. 204.

Chapter 113 of the laws of 1916, as amended by chapter 102 of the laws of 1933 (the title of which was amended by chapter 214 of the laws of 1935) makes subject to execution, and a "continuing levy" thereunder until the sum due thereon and the incidental expenses shall have been fully satisfied, "the wages, debts, earnings, salary, income from trust funds or profits due or to become due to said judgment debtor," if the amount thereof shall be eighteen dollars or more per week, in the sum prescribed by order of the court in which the judgment was recovered or resides, not to "exceed ten per centum unless the income of said debtor shall exceed the sum

of one thousand dollars per annum," in which case payment of a larger percentage may be directed. Pamph. L. 1916, p. 242; Pamph. L. 1933, p. 210; Pamph. L. 1935, p. 508.

It is argued for the judgment debtor and the pension commission that, from reasons of public policy, "pension moneys are exempt from execution and garnishment while in the hands of the pension commission," -- citing Seventy-First Street and Broadway Corp. v. Thorne, 10 N.J. Mis. R. 99; Same Case, Id. 457. It is urged that the statute secondly above mentioned modifies only in respect of the "wages and salaries of public officials" the policy declared in Schwenk v. Wyckoff, 46 N.J. Eq. 560, and Spencer v. Morris, 67 N.J.L. 500, that "the unearned salary or remuneration" payable to the judgment debtor "for official service due to the public" may not be "assigned by him or withdrawn from his use at the instance of creditors;" and that a pension is a "gratuitous allowance" in which the pensioner has no "vested right," and does not fall into any of the statutory categories of "wages, debts, earnings, salary, income from trust funds or profits * * * due and owing to the judgment debtor."

The point is not well made. While a pension is neither "wages, earnings, salary or profits," within the common acceptation and usage of those terms, the pension installments, at least as they accrue, are classable as "debts," within the intendment of the statute. The ordinary legal sense of the term "debt" is an obligation for the payment of money founded upon a contract, express or implied. Turner v. Cole, 118 N.J. Eq. 497. Its technical meaning at common law was "a sum of money due by certain and express agreement" -- that for which an action of debt or indebitatus assumpsit would lie. 3 Bl. Com. 154; Flanagan v. Camden Mutual Insurance Co., 25 N.J.L. 506. But it is also used in the larger sense of that which one person is bound to pay to another under any form of obligation. New Jersey Insurance Co. v. Meeker, 37 Id. 282, ...


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