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Thompson v. Breslove

Decided: June 28, 1960.

J. B. THOMPSON, PLAINTIFF-RESPONDENT,
v.
ESTHER BRESLOVE AND ALBERT BRESLOVE, DEFENDANTS-APPELLANTS



Price, Gaulkin and Foley. The opinion of the court was delivered by Foley, J.A.D.

Foley

This is an appeal from a judgment entered in favor of the plaintiff in the Bergen County District Court. The case was tried without a jury.

Defendants were officers of Jersey Excavating Co., a corporation (hereinafter referred to as the Company), against which the plaintiff had previously recovered a judgment. In aid of execution of that judgment a constable served what purported to be a "Notice of Demand" under N.J.S. 2 A:17-74 and N.J.S. 2 A:17-75 upon the defendants. The statutory provisions are as follows:

"Every agent or person having charge or control of any property of a corporation shall, upon request therefor by any officer having for service a writ of execution against it, furnish to such officer the names of the directors and officers of the corporation, and a schedule of all its property, including debts due or to become due to it so far as he has knowledge thereof.

Any such agent or person who shall neglect or refuse to comply with the provisions of this section shall himself be liable to pay to the execution creditor the amount due on the execution, with costs." N.J.S. 2 A:17-74

"If any officer, holding an execution against a corporation, shall be unable to find other property belonging to the corporation liable to execution, either he or the judgment creditor may elect to satisfy such execution, in whole or in part, by any debts due to the corporation, in which case the agent or person having custody of any evidence of such debts shall deliver the same to the officer holding the execution, for the use of the creditor. Such a delivery, with a transfer in writing to the officer, for the use of the creditor, and notice to the debtor, shall be a valid assignment thereof.

Any such agent or person who neglects or refuses to comply with the provisions of this section shall himself be liable to pay to the execution creditor the amount due upon the execution with costs." N.J.S. 2 A:17-75

The demand which was served reads:

"DEMAND is hereby made by the undersigned, an officer of the Court, having for service a Writ of Execution against the defendant

in the above entitled cause, that you furnish to me a list of the names of the directors and officers of the defendant corporation, and a schedule of all its property including debts due or to become due to it insofar as you have knowledge thereof.

DEMAND is further made of you that you deliver to me, with a transfer in writing, for the use of the plaintiff in the above entitled cause, all of the debts ...


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