On appeal from a judgment of the Supreme Court, whose opinion is reported in 125 N.J.L. 377.
For the prosecutor-appellant, Louis Santorf.
For the defendants-respondents, Seymour J. Hirsch and Milton S. Goldberg.
The opinion of the court was delivered by
DONGES, J. This is an appeal from a judgment of the Supreme Court dismissing a writ of certiorari allowed to review an order of the First District Court of Paterson made in connection with a levy on rights and credits in the form of a bank deposit.
It appears that the defendant Abe Peterman obtained a judgment in that court in the sum of $362.40 against "Anthony Sorce individually and trading as Beninati Fruit Co." This was entered March 4th, 1940, suit having been started on February 7th. Levy was made upon a bank account standing in the name of Beninati Fruit Co., and a rule to show cause was made directing the bank and Sorce
to show cause why the moneys levied upon should not be turned over to the sergeant-at-arms of the court in satisfaction of the judgment. On the adjourned day of the rule the testimony of an officer of the bank was taken. From this testimony it appears that the bank account was opened on January 12th, 1940, in the name of Beninati Fruit Co. by one G. Beninati. The signature card then filed is not in evidence, having been taken away from the bank, but the evidence was that withdrawals were to be made on the signature of G. Beninati. Subsequently, on February 10th, 1940, three days after suit was started, Beninati instructed the bank that withdrawals were to be permitted upon the signature of "Anthony Sorce, Mgr." The bank officer testified that after February 10th withdrawals were made only on the signature of Sorce, but he would not say, when questioned, that Beninati had nothing more to do with the account. Nowhere in his testimony does he admit that there is a debt due from the bank to Anthony Sorce either individually or trading as Beninati Fruit Co. There is merely a recital of the actual facts surrounding the bank account without any conclusion drawn therefrom.
The court took the matter under advisement. Subsequently it made an order directing the moneys to be turned over, and then revoked this order. The matter was set down for further hearing and finally, on the adjourned day, August 8th, 1940, the court having considered the transcript of the bank officer's testimony, made the order under review directing the sergeant-at-arms to collect the money and pay it to the judgment creditor.
The Supreme Court held that the question determined by the District Court was one of fact and that, since in its view there was evidence to support the finding, it should not be disturbed.
We are of the opinion that there was error in the action of the lower courts and that the judgment under review must be reversed. Where there is a levy on rights and credits under the statute here involved, R.S. 2:32-178, a section of the District Court Act, or under the Executions Act, R.S. 2:26-179 and 180, and a rule is issued against the
garnishee and the judgment debtor, an order directing the garnishee to pay the money over may be made only when the garnishee admits the debt is due the judgment debtor. "Upon the return of the rule to show cause an order may be made requiring the garnishee to pay said debt, 'if he admits it.'" First-Mechanics, &c., Bank v. New Jersey Brick, &c., Co., 112 N.J.L. 218. "The words 'an order may be made requiring the garnishee to pay said debt, if he admits it, to the officer' make the admitting of the debt a ...