[20 NJSuper Page 560] Plaintiff herein seeks, by an action in the nature of an equitable assumpsit (Capraro v. Propati , 127 N.J. Eq. 419, (E. & A. 1940), to recover from the defendant certain monies paid to him as a result of the facts hereinafter set forth. The facts are as follows:
On or about December 28, 1949 Robert C. Howell, a real estate broker, trading as Howell Realty Company, had an account with the plaintiff bank. On that date he disappeared and either left the jurisdiction of this State or absconded and concealed himself within the State. In any event, he could not and cannot be found. On the above date he had on deposit with the plaintiff the sum of $612.15.
Subsequent to December 28, 1949, a salesman employed by the said Robert C. Howell, unaware of his disappearance, deposited with the plaintiff in the Howell Realty Company account various sums of money received by him as a real estate agent from individuals as down-payments upon the purchase of real estate. On January 3, 1950 there was a balance in said account of $5,414.26. On January 7, 1950 Charles W. Grau, one of the purchasers above referred to, commenced an action in the Superior Court, Chancery Division, against the said Robert C. Howell to impress a constructive trust upon said account for the sum of $1,671, being the amount of a check so given to the above referred to salesman. On January 13, 1950 the said Grau obtained an interlocutory injunction restraining the plaintiff from paying out funds in the above captioned account to the extent of $1,671. On January 20, 1950 one Robert Gallagher, also a purchaser of realty, commenced a similar action and obtained an interlocutory injunction against the plaintiff, restraining it from paying out the sum of $1,075. On January 30, 1950 Alfred M. Mulzet and Mary C. Mulzet, his wife, commenced a similar action to the two above referred to and obtained an interlocutory injunction against the plaintiff, restraining it from paying out the sum of $4,450.
On January 16, 1950 the defendant herein commenced an action in the Cape May County Court for the recovery of $2,100 allegedly paid to the Howell Realty Company as a down-payment on the purchase of certain realty, by attachment. Thereafter, the said defendant sought to intervene in the actions commenced in the Chancery Division of the Superior Court by Charles W. Grau and Robert Gallagher,
which application was granted. On or about June 12, 1950 the said defendant withdrew said intervention. On June 16, 1950 three judgments were entered in the Chancery Division of the Superior Court directing said plaintiff to pay unto (1) Charles W. Grau $1,671; (2) to pay unto Robert Gallagher $1,075, and (3) to pay unto Alfred M. Mulzet and Mary C. Mulzet the sum of $4,950.
Judgment was entered in the suit of the defendant commenced in the Cape May County Court on April 20, 1950 in the sum of $2,201.02. Levy was thereafter made under said Cape May County Court judgment by the sheriff of that county upon the Howell bank account, and the plaintiff not having paid the amount of the levy, an order to show cause was issued by the Cape May County Court directing the plaintiff to show cause why said amount should not be turned over and paid to the said sheriff. On the return day of said order to show cause, May 3, 1950, no one appearing, Judge Tenenbaum, of the Cape May County Court, signed an order directing the Wildwood Trust Company as garnishee to pay the same over to the sheriff. Said amount was thereupon paid over to the sheriff.
Subsequent to having certified copies of the three judgments entered in the Chancery Division of the Superior Court in the Grau, Gallagher and Mulvet suits served upon plaintiff, it obtained an order to show cause on or about June 26, 1950, directing the sheriff of Cape May County and defendant to show cause why the monies delivered as above set forth should not be repaid to it. On September 30, 1950 the application of the plaintiff in said proceeding was denied.
Plaintiff now alleges that by reason of the payment of $2,201.02 made in the Cape May County Court suit, there is $1,782.76 less than the amount required to pay the Superior Court judgments and that the plaintiff will have to stand a loss in this amount.
Plaintiff therefore seeks to recover the payment made to the defendant upon the grounds that defendant is unjustly enriched and that the payment made to the defendant was
an involuntary payment. Actually, the plaintiff herein alleges that the payment so made was under an execution of a judgment which was a nullity because the defendant had no legal basis for an attachment. Plaintiff asserts as well that the intervention in the Chancery action and the continuation of the County Court action at the same time amounted to a fraud upon this court, and that the involuntary nature of the payment by ...