For the prosecutor, J. Bernard Saltzman.
For the respondent, Feder & Rinzler (Joseph A. Feder and Jack Rinzler, of counsel).
Before Brogan, Chief Justice, and Justices Parker and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The question for decision is whether Sadie Cohen's one-third share in the sum of $23,874.90, payable to her on July 7th, 1945, provided she is then living, is a right or credit presently subject to levy and sale under our Execution laws.
The facts are free from dispute. Sadie Cohen's now deceased husband, Ben Cohen, had owned, during his lifetime, seven policies of insurance with the Metropolitan Life Insurance Company. Sadie Cohen was the beneficiary of each of these and the total sum payable thereunder was $25,000. Ben Cohen pursuant to option one of the "modes of settlement" in the policies had by a written instrument directed the insurance company to retain the proceeds of the policies for ten years after his death; to permit his widow, Sadie Cohen, defendant below and respondent here, to withdraw a sum not exceeding $300 from the moneys retained by it; and to pay her 3 1/2% interest on the principal.
Accordingly, upon the death of Ben Cohen, by an instrument in writing issued and entitled "Supplementary contract, No. 15624R," the insurance company agreed, among other things, that in consideration of the surrender to it of the seven policies it would "retain" the $23,874.90, the amount apparently, actually payable under the policies, and it promised to pay interest to Sadie Cohen upon that amount at the "guaranteed rate of 3 1/2 per centum per annum * * * until the seventh day of July, 1945, when the amount then retained by the company, together with the interest then accrued thereon, shall be paid at once in one sum to the said
Sadie Cohen and Irving Cohen and Annette Cohen, in equal shares * * *." The contract further provided, however, "that in the event the death of the said Sadie Cohen shall occur prior to the seventh day of July, 1945, the amount then retained by the company shall be apportioned in equal shares to the said children * * *."
Sadie Cohen is living and receiving her annual income of $1,135.62 (consisting of $835.62 guaranteed interest and $300 permissive annual withdrawal) in pursuance of the aforementioned supplementary contract, which contract had been modified so that the annual income was, in fact, paid in twelve monthly payments.
The plaintiff below, and prosecutor here, obtained a judgment by default against Sadie Cohen and two others in the Passaic County Circuit Court. He thereafter proceeded by diverse methods, to seek to obtain satisfaction of this judgment out of the annual income and out of the one-third share payable to defendant on July 7th, 1945, in accordance with her aforementioned supplementary contract with the insurance company.
On the return of a rule to show cause why plaintiff should not have satisfaction of his judgment out of the aforementioned funds, Circuit Court Judge Wolber dismissed the rule and thus denied plaintiff the right to seek satisfaction either out of defendant's annual income or ...