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Cahn v. Allen

New Jersey Supreme Court


Decided: August 14, 1939.

LEO CAHN, PLAINTIFF-APPELLANT,
v.
LEON E. ALLEN, DEFENDANT-RESPONDENT

On appeal from the Monmouth County Court of Common Pleas.

For the plaintiff-appellant, Edwin P. Longstreet.

For the defendant-respondent, Lloyd C. Riddle.

Before Brogan, Chief Justice, and Justices Donges and Porter.

Brogan

[123 NJL Page 126]

BROGAN, CHIEF JUSTICE. The order under appeal was made in the Common Pleas Court of Monmouth County. The question that strikes us is whether the order may be reviewed by appeal.

Antecedent to the matter now before us, the plaintiff, Cahn, recovered a judgment against the defendant in the Pleas for $962.97. Thereafter an order was made requiring the judgment debtor, who received a salary of $40 weekly, to pay $4 each week in partial satisfaction of the judgment. This the judgment debtor failed to do and proceedings were had to have him adjudged in contempt of the court's order. The judgment debtor countered with a motion to dismiss the order providing for payments out of income as being against public policy since the salary in question was received by Allen for his services as clerk in the United States Post Office at Manasquan, New Jersey. The court, after argument, concluded that he erred in making the first order and he thereupon set it aside on the ground of public policy, and the plaintiff, judgment creditor, appeals. But this is not a matter

[123 NJL Page 127]

which may be appealed. Only a final judgment at law is appealable or that which is tantamount thereto. Cf. Knight v. Cape May Sand Co., 83 N.J.L. 597. Here it is not a judgment that is sought to be reviewed but subsequent proceedings thereon and certiorari is the only method to be employed. Krumeick v. Krumeick, 14 Id. 39, 42; Oetjen v. Hintemann, 91 Id. 429, 432. Execution or satisfaction is no part of the judgment. It is rather an entirely subsequent proceeding in the cause and may be reviewed only by certiorari.

The appeal is therefore dismissed, without costs and without prejudice, so that the aggrieved party may, if he so desires, make application for certiorari.

19390814


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