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Atanasio v. Silverman

Decided: December 4, 1950.

FREDERICK ATANASIO, PLAINTIFF,
v.
SAMUEL W. SILVERMAN, DEFENDANT



On plaintiff's petition to set aside order for offset.

Joseph L. Smith, J.s.c.

Smith

The petition to set aside the order for offset is based upon three grounds:

(1) The former Supreme Court did not have jurisdiction to make the order for offset, said order being entered November 27, 1946, by former Chief Justice Case.

(2) Defendant was not entitled to the relief of offset because of fraud in securing the assignments of the judgments which are the basis for the offset, and because defendant came into court with unclean hands.

(3) The purchase by an employer of claims against his employees and the offsetting of them against unpaid wages is against the public policy of the State of New Jersey.

Each ground shall be discussed in order.

The former Supreme Court of New Jersey was a court of original jurisdiction and as such had jurisdiction over the subject matter of judgments and offset within its own court. It must be noted that all the judgments obtained and used by either party were obtained in the former Supreme Court.

This is in effect an attempt by the plaintiff to review the decision of the former Supreme Court, and as such this court is without the proper jurisdiction to hear such an appeal. In so far as the instant matter is concerned, the proper procedure should have been an appeal to the former Court of

Errors and Appeals. Since the proper avenue of review was not adopted by the plaintiff he cannot now seek to review the proceedings in the former Supreme Court by means of a collateral attack in this court.

Plaintiff bases its claim that the court lacked jurisdiction on their interpretation of R.S. 2:26-182 to R.S. 2:26-187.2 inclusive. Now, these statutes deal with the situation wherein a judgment has been obtained by the creditor and he seeks to have "an execution issue against the wages, debts, earnings, salary, income from trust funds or profits of the judgment debtor." (R.S. 2:26-182.)

However, in the instant case there is no such an occurrence. The defendant Silverman did not seek an execution by virtue of R.S. 2:26-182 as contended by the plaintiff, but rather the defendant sought to have the judgment secured by the plaintiff against him offset by the judgments he, the defendant, had purchased by ...


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