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Clarke v. Brown

Decided: June 5, 1968.

JOSEPH T. CLARKE, JR., PLAINTIFF,
v.
AMOS BROWN, DEFENDANT. LESLIE C. LYON, PLAINTIFF, V. AMOS BROWN, ET AL., DEFENDANTS. JOHN BALANETSKY, JR., PLAINTIFF, V. AMOS BROWN, ET AL., DEFENDANTS



Mariano, J.s.c.

Mariano

Plaintiff Balanetsky by motion seeks to intervene and, in the alternative, to restrain the Unsatisfied Claim and Judgment Fund (Fund) from making payment. The motion is submitted to the court for its determination on the following agreed stipulation of facts. The matters in brackets are supplied by the court.

"1. On September 1, 1965, plaintiff Joseph T. Clarke, Jr. was the owner and operator of a motor vehicle involved in an accident with a motor vehicle owned and operated by defendant Amos Brown. Plaintiffs Leslie Lyon and John Balanetsky, Jr. were passengers in the motor vehicle of Joseph T. Clarke, Jr. Notices of Intentions were timely filed, pursuant to N.J.S.A. 39:6-65, with the Unsatisfied Claim and Judgment Fund on behalf of Joseph T. Clarke, Jr., Leslie Lyon and John Balanetsky, Jr.

"2. Suit was instituted on behalf of Joseph T. Clarke, Jr. against Amos Brown [September 29, 1965], Docket No. L-2655-65 [Superior Court, Law Division, Camden County];

and on behalf of Leslie Lyon against Amos Brown and Joseph T. Clarke, Jr. [October 19, 1965] in October, 1965, [in the same Court], and defendants were duly served.

"3. In April, 1966 [May 5, 1966], Judge W. Orvyl Schalick ordered the above two cases consolidated.

"4. In February, 1967 [January 25th] suit was instituted on behalf of John Balanetsky, Jr., against Amos Brown and Joseph T. Clarke, Jr. (Superior Court, Law Division, Camden County) Docket No. L-15758-66 and defendants were duly served.

"5. On March 23, 1967 Judge W. Orvyl Schalick denied a motion to consolidate all three cases on the grounds that said application was out of time.

[From the statements of counsel it appears that defendant Clarke in the Balanetsky suit made a motion to consolidate all three cases, which motion was denied on March 23, 1967. There is no such order in the file. The pleadings indicate that Balanetsky received notice of said motion. No counter-motion to intervene was made by Balanetsky.]

"6. The plaintiff, Leslie Lyon, settled his claim with the Unsatisfied Claim and Judgment Fund for the sum of $3,250 in November 1967 [judgment entered November 29, 1967].

[From the oral argument the court was informed that judgment in the sum of $3,250 in favor of Lyon was entered on November 29, 1967, and an order to compel the Fund to pay was entered in January 8, 1968 and the same has been paid.]

"7. Plaintiff, Joseph T. Clarke, Jr., obtained a judgment by jury verdict on January 8, 1967 against Amos Brown in the amounts of $2,660 for property damages and $12,500 for personal injuries. [December 15, 1967].

[The motion to intervene and the motion by plaintiff Clarke to compel the Fund to pay were heard on April 5, 1968, at which time the court entered an order compelling the Fund to pay Clarke the statutory amount and at the same time withheld execution of the said order until the

disposition of Balanetsky's motion to intervene or to restrain payment.]

"8. Plaintiff, John Balanetsky, Jr., has not, to date, recovered a judgment, however, it is hereby stipulated and agreed that his claim would have a value in excess of $6,750, the balance remaining from maximum amount recoverable, $20,000, after a deduction of $10,000 for Joseph T. Clarke, Jr. and $3,250 for Leslie Lyon, but provided this stipulation is to be without prejudice to future procedural conduct of the Fund's defense of the Balanetsky claim, and it is to be limited to the needs of resolving a presently contemplated procedure to resolve claimed priorities to the Unsatisfied Claim and Judgment Fund's $20,000 maximum."

Plaintiff Balanetsky seeks to intervene pursuant to R.R. 4:37-1(b) which reads as follows:

"Upon timely application anyone shall be permitted to intervene in an action: * * *

(b) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the ...


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