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Kristeller v. First National Bank of Jersey City

Decided: January 26, 1938.

LIONEL P. KRISTELLER, PLAINTIFF-RESPONDENT,
v.
THE FIRST NATIONAL BANK OF JERSEY CITY, DEFENDANT-APPELLANT; LIONEL P. KRISTELLER, PLAINTIFF-RESPONDENT, V. J. I. KISLAK, INCORPORATED, DEFENDANT-APPELLANT



On appeal from judgments of the Supreme Court.

For the appellants, John I. O'Neill (Alex R. DeSevo, of counsel).

For the respondent, Saul J. Zucker.

Heher

The opinion of the court was delivered by

HEHER, J. The object of each action was the recovery -- by the attorney of the prevailing party -- of costs taxed on an order of the Supreme Court staying the operation of an order directing the issuance of an execution against the wages of William Berkowitz, defendants' judgment debtor, and a levy thereunder of fifteen per cent. of such wages.

After the rendition of the judgments against Berkowitz, he filed a petition in bankruptcy. Objections to his discharge

were interposed; and, on the assumption that the discharge would be long delayed or eventually withheld, defendants, represented by the same attorney, procured the orders for execution upon his wages. At the instance of Berkowitz, the orders staying the respective executions were entered. These orders carried costs. Upon the refusal of defendants to pay the costs so assessed, the actions were instituted. The answers introduced were struck out as frivolous; and from the consequent judgments defendants appeal.

In substance, the common defense set up in the answers is that respondent has no cause of action for the following reasons, viz.: (1) failure to make immediate service of a copy of the taxed bill of costs; (2) the sole remedy is by execution in the cause; and (3) the costs are offset by appellant's judgment against Berkowitz.

The first point made on the brief is that the principle of set-off is apposite. Courts of law are possessed of an authority -- purely equitable in nature -- to apply the doctrine of set-off to mutually enforceable judgments when dictated by considerations of equity and substantial justice. But this is in virtue of their inherent power to control their own suitors and the execution of their process; hence, it is to be exercised by the court wherein resides the judgment against the party seeking satisfaction by way of set-off. Brown ads. Hendrickson, 39 N.J.L. 239; McAdams v. Randolph, 42 Id. 332; Brookfield v. Hughson, 44 Id. 285; Terney v. Wilson, 45 Id. 282; Schautz v. Kearney, 47 Id. 56; Phillips v. MacKay, 54 Id. 319.

Moreover, while the question has evoked sharply conflicting views in other jurisdictions, it is now the settled rule in this state, lately reaffirmed by this court, that costs -- as distinguished from disbursements not actually made by the attorney -- though awarded to the client, are the property of his attorney. Brown ads. Hendrickson, supra., Schautz v. Kearney, supra; Phillips v. MacKay, supra; Columbia Insurance Co. v. Artale, 112 N.J. Eq. 505; affirmed, 114 Id. 268. The equity of the set-off, if the right be conceded for present purposes, does not rise superior to the attorney's

absolute interest in the costs. And so the fact that the costs were taxed on an order relating to the enforcement of the very judgment claimed to be the proper ...


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