Goldmann, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D.
Defendant appeals from a final judgment of the Essex County District Court entered in favor of plaintiffs and against defendant upon the opening statements of counsel. The plaintiffs Margolis are members of the Bar of New Jersey; Eva Wadley is their client. Defendant is also a member of the New Jersey Bar.
Plaintiffs sued to recover the sum of $250 upon a check drawn upon Clawan's personal account and made and delivered by her for the benefit of her client Louise Scott. Clawans had stopped payment on the check.
The matter is presented on a statement of the proceedings, which was settled by the trial judge for use instead of a stenographic transcript. R.R. 1:6-3. That statement contains also the findings of fact and conclusions of law reached by the trial judge. It reads:
"The instant suit is based upon a check in the sum of Two Hundred and Fifty Dollars ($250.00) given to the plaintiff as a result of a stipulation entered in the case of Wadley vs. Scott , Essex County District Court, Docket No. 255-690. Payment was stopped on this check and plaintiff demands the amount thereof, together with interest.
At the opening of the above entitled cause, the defendant made an opening contending as a defense, said check was given for and on behalf of Louise Scott, in settlement of said suit, Wadley vs. Louise Scott; that said settlement was made upon expressed conditions that said Eva Wadley would execute and deliver a release, under seal, to said Louise Scott, of any claims alleged on said suit and in addition thereto would forthwith vacate said premises, 32 Lincoln Street, Newark, New Jersey, then occupied by the said Eva Wadley and being the property of the said Louise Scott.
After delivery of said check, the said Eva Wadley failed and refused to prepare, execute and deliver the release aforesaid and failed and refused to vacate the premises aforesaid, although more than four weeks had expired from the date of proposed settlement-agreement aforesaid, the said Eva Wadley had neither prepared, executed or delivered said release nor vacated said premises and thereupon this defendant, pursuant to instructions and to protect the said Mrs. Louise Scott, stopped payment on the check sued upon, mentioned and described in paragraph 1 of said complaint.
This defendant contended that the said Eva Wadley had failed and refused to comply with the conditions of said settlement and that her said failure and refusal, constituted failure of consideration. The defendant was prepared and offered to submit proof of the above allegations.
Plaintiff contended on the opening that this defense was a collateral attack on a judgment of this court heretofore mentioned in the case of Wadley vs. Scott, Docket No. 255-690.
Plaintiff brought to the Court's attention that this stipulation and judgment entered on said docket reads as follows:
'Rent is to be considered paid in full from November 11, 1956 to May 11, 1957. Defendant is to pay plaintiff the sum of $250.00 in two weeks. If not paid, upon filing of Affidavit by plaintiff and ...