Plaintiff International Brotherhood of Electrical Workers, Local #1470 (local), and defendant John P. Gillen, Sheriff of Hudson County (sheriff), have each moved for summary judgment in this action concerning the amount of the fee due to the sheriff under the following uncontroverted factual setting.
In May 1978 a judgment was entered against the local in the Superior Court, Law Division, Hudson County, in the sum of $277,500 plus interest and costs. During the pendency of the local's appeal of that judgment, the parties settled the matter and the judgment creditor, one Josephine Bennett
Lambert, executed a release of the judgment in consideration for the sum of $165,000.
However, prior to the settlement an execution had issued on the judgment and the sheriff had levied upon some $22,500 held by defendant Western Electric Company (Western) on the local's behalf. From the affidavit of Special Deputy Sheriff Frank Cardoza, it appears that the levy was effected by Cardoza's driving to Western's plant and serving the writ of execution on a representative of Western. It was conceded at oral argument that the sheriff never obtained possession of the money upon which the levy was made; the money remained in Western's possession until this action was begun.
After being notified of the settlement the sheriff claimed that N.J.S.A. 22A:4-8 entitles him to a commission of $2,070 and refused to lift the levy until that commission was paid. The local then instituted this action seeking a judgment compelling the sheriff to lift the levy and a declaratory judgment as to the sheriff's entitlement to fees. By consent of the parties the levy was ordered lifted and the sum of $2,300 was deposited with the Clerk of the Superior Court to await the outcome of this litigation.
The sheriff's claim to $2,070 in commissions is based on that part of N.J.S.A. 22A:4-8 which follows the heading "Execution Sales." In particular, he relies on the following paragraph
When the execution is settled without actual sale and such settlement is made manifest to the officer, the officer shall receive 1/2 of the amount of percentage allowed herein in case of sale.
The sheriff urges that N.J.S.A. 22A:4-8 must be read in pari materia with N.J.S.A. 2A:17-15, which provides that "[m]oney belonging to a defendant in execution may be levied on and returned by virtue of an execution as so much money collected, without exposing the same to sale." According to the sheriff's analysis, an in pari materia reading of these two provisions leads to the conclusion that the sheriff is entitled to 2% of the first $1,000 of the settlement plus
1 I/4% of any amount in excess of $1,000 where an execution on cash is settled by the parties.
The local contends that a reading of the above-quoted statutes leads to the conclusion that the sheriff is not entitled to any percentage commissions on this transaction. It argues that the "execution sales" portion of N.J.S.A. 22A:4-8 clearly applies only when the goods which are the subject of the execution are subject to sale. Since cash is not subject to execution sale on ...