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Nilson v. Moskal

Decided: November 6, 1961.

DOUGLAS NILSON, PLAINTIFF,
v.
STANLEY W. MOSKAL, JR., DEFENDANT, THIRD-PARTY PLAINTIFF V. MADISON TOWNSHIP POLICE DEPARTMENT AND WILLIAM C. BURLEW, THIRD-PARTY DEFENDANTS. ROBERT PEPSNY, PLAINTIFF, V. STANLEY W. MOSKAL, JR., MADISON TOWNSHIP POLICE DEPARTMENT AND WILLIAM C. BURLEW, DEFENDANTS



Schwartz, J.c.c.

Schwartz

Plaintiff Nilson sued Moskal in tort. Moskal was granted leave to file a third-party complaint whereby he impleaded Burlew and the Madison Township Police Department for contribution.

Moskal settled with Nilson, a conventional release was delivered by Nilson to Moskal, and Moskal now desires to proceed for recovery of contribution from Burlew and the police department. The third-party defendants move for summary judgment, contending the relief sought does not exist under authority of our statute.

The question of law thus raised is as follows:

Does a settlement extinguish a tortfeasor's right to contribution?

While the effect of a settlement on the injured plaintiff and a co-defendant and third-party defendant has been considered and determined in New Jersey, the effect of a settlement on the further right of the settler to contribution appears undecided. See Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67 (1954); Sattelberger v. Telep , 14 N.J. 353 (1954).

Our statute has four sections. The first and second define "joint tortfeasor and declare that contribution exists." The third is the only direct source, delineating the right that now prevails where none did at common law. The fourth section merely deals with the effective date of the newly created rights.

The third section provides as follows:

"Where injury or damage is suffered by any person as a result of the wrongful act, neglect or default of joint tortfeasors, and the person so suffering injury or damage recovers a money judgment or judgments for such injury or damage against one or more of the joint tortfeasors, either in one action or in separate actions, and any one of the joint tortfeasors pays such judgment in whole or in part , he shall be entitled to recover contribution from the other joint tortfeasor or joint tortfeasors for the excess so paid over his pro rata share; but no person shall be entitled to recover contribution under this act from any person entitled to be indemnified by him in respect to the liability for which the contribution is sought." N.J.S. 2A:53A-3. (Emphasis supplied)

To recover contribution, the statute conjunctively requires that (1) the injured person recover a judgment, and (2) one of the sued tortfeasors pay such judgment "in whole or in part."

The contribution now available being statutory "the law 'infers that the act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced, for if the parliament had had that design, it is naturally said they would have expressed it.'" Breen v. Peck , 28 N.J. 351, 369 (1958).

While we have had reported decisions in which we find statements indicative of our view, it is conceded that such authorities are not factually parallel with the instant situation. However, we draw on them ...


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