American Exp. Co. v. Vella

• Decision Date: 13 October 1966
• Docket Number: No. L--8343,L--8343
• Citation: 92 N.J.Super. 380,223 A.2d 515
• Parties: AMERICAN EXPRESS COMPANY, an unincorporated association, Plaintiff, v. Charles VELLA and Maria Vella, Defendants.
• Court: New Jersey Superior Court

Page 380

92 N.J.Super. 380

223 A.2d 515

AMERICAN EXPRESS COMPANY, an unincorporated association, Plaintiff, v. Charles VELLA and Maria Vella, Defendants.

No. L--8343.

Superior Court of New Jersey Law Division.

Oct. 13, 1966.

Ronald Sturtz, Newark, for plaintiff (Hannoch, Weisman, Myers, Stern & Besser, Newark, attorneys).

James A. Major, Hackensack, for defendants (Major & Major, Hackensack, attorneys).

SCHNEIDER, J.C.C. (temporarily assigned).

On December 9, 1964 a writ of attachment was issued in this case and levied on a bank account in the River Edge Savings & Loan Association, River Edge, New Jersey, by serving the writ upon the secretary of the association.

On December 7, 1964 a search warrant was issued out of the Bergen County Court involving defendants in a criminal case. The Bergen County Prosecutor seized defendants' effects, including pass book No. 6608 issued by River Edge Savings & Loan Association to the Vellas. On January 25, 1965 an application was made to the Bergen County Court by Maria Vella; the search warrant was quashed and the bank book ordered returned to her or her attorney, Albert S. Gross.

On January 27, 1965 Maria Vella came to the River Edge Savings and Loan Association and presented the pass book, a copy of the order compelling the return of the pass book, and a withdrawal voucher in the sum of $8,610. The institution issued a bank draft, and the endorsement shows the check was deposited in the account of Gross and Gross, attorneys.

Thereafter American Express Company recovered a judgment in the attachment suit, issued execution, and then found there were no funds in the account that had been attached. It now seeks an order to direct the River Edge Savings and Loan Association to turn over the funds under the execution.

The association contends that it does not acknowledge the debt; that N.J.S. 2A:17--63, N.J.S.A., provides that the garnishee must admit the debt and the proceeding should have been by a plenary suit. The facts contained above are admitted to be true. The attachment was issued and levy made before anything happened. There is no necessity for any additional suit where there is no dispute that the money was attached and subsequently paid out in disregard for the attachment. The statute states the garnishee must admit the debt. Here there was money in the hands of the association at time of attachment and there is no need of an inquiry to determine the facts.

In Winchell v. Clayton, 133 N.J.L. 168, 43 A.2d 267 (Sup.Ct.1945), the bank could show there was only a small amount remaining in the account at time of execution. The court held the garnishee did not admit the debt. In Rasner v. Carney, 108 N.J.L. 426, 158 A. 321 (Sup.Ct.1932), the court quoted from Stivaly Bros. v. Bartolozzo, 9 N.J.Misc. 143, 153 A. 266 (Sup.Ct.1931), that the words 'if he admits it' did not permit strict construction where there is a failure to deny or there is an admission of existence of the fund.

In Piechowski v. Matarese, 54 N.J.Super. 549, 553, 149 A.2d 632 (Law Div.1959), the court stated that where there is a denial of debt, there should be some kind of trial or hearing after due notice.

In our case, a trial or hearing would develop the same facts as conceded. We therefore find no merit in plaintiff's first contention.

The association denies there is any valid levy, contending that in order to withdraw funds the pass book is needed; the pass book is the debt in the case of a savings account, and since this book was in the custody of the...