Opinion
No. 43/329.
11-10-1917
BALDWIN et al. v. MARTIN et al.
Howe & Davis, of Orange, for complainants. Jacob L. Newman, of Newark, for defendants Theodore McCurdy Marsh and Benjamin Newman. Paul M. Fischer, of Newark, for defendant George G. Perry.
Suit between Albert F. Baldwin and others and Edward W. Martin and others. Decree advised.
Howe & Davis, of Orange, for complainants. Jacob L. Newman, of Newark, for defendants
Theodore McCurdy Marsh and Benjamin Newman. Paul M. Fischer, of Newark, for defendant George G. Perry.
LANE, V. C. This is an interpleader suit. One Edward W. Martin obtained a judgment against Albert F. Baldwin for $4,509.91, entered in the Supreme Court May 3, 1916. July 13, 1915, the cause of action upon which the judgment was based was assigned by written assignment to Benjamin Newman and Hahn & Newman. I find from the testimony that this assignment was made for the purpose of securing: First, the attorney's fees and costs; second, an amount due to Theodore McCurdy Marsh; third, an amount due to Benjamin Newman for advances. On June 30, 1915, the defendant George D. Perry recovered a judgment against the said Edward W. Martin for upwards of $4,000. No execution was issued upon the judgment until November 12, 1915. On that day the sheriff of Essex county received it. No levy was made, and the execution was returned "wholly unsatisfied." The writ was not received by the sheriff until after the making of the assignment heretofore referred to. The defendant Perry can claim no right under this writ.
On the 12th day of May, 1916, a formal assignment of the judgment recovered by Baldwin against Martin entered on the 3d day of May, 1916, was made to Benjamin Newman. It was recorded in the clerk's office of the Supreme Court on the 15th day of May, 1916. This assignment was merely for the purpose of carrying out the intent of the assignment which had theretofore been made on July 13, 1915. On the 3d day of May, 1916, an alias execution on the judgment obtained by Perry against Martin was received by the sheriff of Essex. A levy was made by the sheriff on the 19th day of May upon the judgment obtained by Martin against Baldwin. Whether that levy, so far as personal property isconcerned, relates back to the time of the receipt of the writ by the sheriff I think is immaterial in view of my conclusion that the assignment of judgment from Martin to Newman on May 12, 1916, was but a step designed to carry out the purpose of the assignment which had been made on July 13, 1915, some time before any writ of execution had been issued upon the judgment obtained by Perry against Martin. I find that there was no fraud in the making of this assignment, and that it was not for the purpose of hindering, delaying, or defrauding creditors. it is conceded that if the assignment is valid, there is due under it more than sufficient to exhaust the fund.
A decree will be advised directing the payment of the fund in court in pursuance of the conditions of the assignment.