Sullivan, Foley and Leonard. The opinion of the court was delivered by Sullivan, S.j.a.d. Foley, J.A.D. (dissenting).
[100 NJSuper Page 508] Defendant Warren W. Steinberg (Steinberg) appeals from an order of the trial court dismissing his cross-claim against defendant Caroline Magle
(Magle) for contribution under the Joint Tortfeasors Contribution Law.
The appeal is presented under an agreed statement of the case as follows:
The present appeal has its foundation in an automobile accident which occurred January 13, 1964 on Walnut Street in Livingston, New Jersey. The issue presented is a purely legal one, and the facts which give rise to it are completely undisputed. Many of the facts involve the circumstances in which the plaintiff's case was disposed of and, therefore, do not appear as a matter of record. The facts contained in this Statement of the Case have been agreed to by and between counsel for the appellant and counsel for the respondent as representing what truly occurred during the transaction which resulted in this appeal.
The accident occurred during a snowstorm. The plaintiff Rita Young was a passenger in an automobile operated by her sister Caroline M. Magle, which automobile was proceeding south on Walnut Street. This vehicle was in collision with a motor vehicle operated by defendant Warren W. Steinberg and owned by Julius Steinberg, which vehicle had been proceeding north on the same road. The defendant Cosmo Book Distributing Company was the employer of defendant Warren W. Steinberg, and plaintiff asserted that the Steinberg vehicle was being used on its business at the time of the accident.
As a result of these negotiations, in which all counsel participated, plaintiff, through her attorney, agreed to accept the sum of $50,000.00 in full settlement of her claims. The carrier for the defendant Caroline M. Magle refused to contribute to this figure, and the carrier for the defendants W. Steinberg and Cosmo Book Distributing Company thereupon settled the case with plaintiff and her attorney for the above figure. Thereafter, the court was advised by William T. McElroy, Esq. and Fred A. Napolitano, Esq. that the defendants Warren W. Steinberg and Cosmo Book Distributing Co., having amicably settled their differences with the plaintiff, a Release would be given by plaintiff to defendants Warren W. Steinberg and Cosmo Book Distributing Co. in consideration of the payment of $50,000.00; that the Release would contain language reserving the rights of releasees against defendant Caroline M. Magle. Plaintiff's attorney stated to the court that he was dismissing his action with prejudice as to the defendants Caroline M. Magle and Julius Steinberg. The attorney for the defendant Warren W. Steinberg stated to the court that he desired to proceed on his crossclaim for contribution as well as on crossclaim of Cosmo Book Distributing Co. against Caroline M. Magle as a joint tortfeasor. The court was advised that while the Release given by the plaintiff to Warren W. Steinberg would also include the defendant Cosmo Book Distributing Co., in fact, Cosmo was not contributing to the settlement. Whereupon the
court, on motion of attorney for defendant Magle, directed that further participation on behalf of Cosmo, by its attorney, was not necessary. Thereupon, the attorney for Cosmo Book Distributing Co. withdrew from the case. A motion was then made by the attorney for defendant Caroline M. Magle to dismiss the crossclaims of the defendants Warren W. Steinberg and Cosmo Book Distributing Co. against defendant Magle under the Joint Tortfeasors Act based upon the aforesaid settlement announced to the court by its attorney. This motion was argued before the court by the respective attorneys for the parties and at the conclusion thereof, the attorney for Warren W. Steinberg and Cosmo Book Distributing Co. requested an adjournment for a short period of time in order that he could procure the attendance in court of the attorney for the plaintiff so that a consent judgment in the sum of $50,000.00, without costs, could be entered upon the records of the court in favor of the plaintiff and against the defendants Warren W. Steinberg and Cosmo Book Distributing Co. The court granted this request over objection of attorney for defendant Magle.
Shortly thereafter, and on that same day, the attorney for the plaintiff and Mr. McElroy, representing the defendants Warren W. Steinberg and Cosmo Book Distributing Co., entered upon the records of this court a consent judgment in favor of the plaintiff and against the said defendants in the sum of $50,000.00, without costs. The aforesaid motion of the attorney for the defendant Magle was renewed and decision reserved by the court. Thereafter, a new jury was empaneled and a trial conducted (over objection of attorney for defendant Magle) on the issue of whether or not the defendant Magle was a joint tortfeasor with Warren Steinberg and Cosmo with respect to the accident involving the plaintiff Young. This jury returned a verdict finding that the defendant Magle was such a joint tortfeasor. Thereafter, the motion of the attorney for the defendant Magle aforementioned to dismiss the crossclaims of the defendants Warren W. Steinberg and Cosmo Book Distributing Co. under the Joint Tortfeasors Act was reviewed, decision reserved and briefs submitted to the court.
Argument on the motion was heard by the court on March 9, 1967 and after consideration of same and the briefs of counsel, the court granted the motion of the defendant Magle to dismiss the cross-claim for contribution under the Joint Tortfeasors Act asserted by the defendants Warren W. Steinberg and Cosmo Book Distributing Co.
The second count of the crossclaims by Julius Steinberg was dismissed at the request of Mr. McElroy.
The consent judgment was paid by or on behalf of Warren Steinberg and Warrant for satisfaction thereof filed ...