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Downs v. Winslow

Decided: March 12, 1969.

HERBERT DOWNS, GUARDIAN OF HIS MINOR CHILD JOY DOWNS, PLAINTIFFS-RESPONDENTS,
v.
OSCAR WINSLOW, DEFENDANT, AND UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, DEFENDANT-APPELLANT



Gaulkin, Collester and Labrecque.

Per Curiam

In view of what happened in the trial of the consolidated cases, we question the trial court's holding (Downs v. Winslow, 97 N.J. Super. 238, 244) (Law Div. 1968) that there was an adjudication that Joy Downs could not have recovered in an action against Rosemary Di Ionno. However, we find it unnecessary to express any opinion on this question because it is immaterial whether or not there could have been such a recovery. The fact of the matter is that Di Ionno's carrier did settle Downs' claim against Di Ionno for $1,400. The Fund was entitled to the benefit of that settlement even if it be a fact that Downs could not have prevailed in an action against Di Ionno. Cf. Shebell v. Strelecki, 104 N.J. Super. 139 (App. Div. 1969). Since the Downs judgment against Winslow was less than the $1,400 paid to Downs by Di Ionno's carrier, the Fund owes Downs nothing.

Reversed. No costs.

19690312 ...


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