Glaser v. Dist. Court of City of Perth Amboy

• Decision Date: 26 January 1934
• Docket Number: No. 251.,251.
• Parties: GLASER v. DISTRICT COURT OF CITY OF PERTH AMBOY et al.
• Court: New Jersey Supreme Court

170 A. 228

GLASER

v. DISTRICT COURT OF CITY OF PERTH AMBOY et al.

No. 251.

Supreme Court of New Jersey.

Jan. 26, 1934.

Syllabus by the Court.

1. On a claim of property after execution and levy in a district court, it is proper to direct a verdict when there is no material fact in dispute on the evidence.

2. Evidence examined, and held, that a direction in this case was improper.

Certiorari proceedings by Israel Glaser against the District Court of the City of Perth Amboy and Edward Hutmacher and another, trading as the Cadillac Shirt Company, to review a directed verdict of a jury on a claim of property after execution and levy.

Verdict and judgment thereon set' aside, and matter remanded, with directions.

Argued October term, 1933, before PARKER, LLOYD, and PERSKIE, JJ.

Jacob I. Polkowitz, of Perth Amboy, for prosecutor.

PARKER, Justice.

This is a certiorari to a directed verdict of a jury on a claim of property, tried pursuant to sections 190 and 191 of the District Court Act, 2 Comp. St. 1910, pp. 2008, 2009, §§ 190, 191. The chattels had been levied on as the property of one Sendar, and the prosecutor herein, who claimed title to them by virtue of a prior sale under a landlord's distraint for unpaid rent, gave notice in writing to the officer holding the execution as provided by section 190, and the claim was tried by a jury of six men. Both the claimant and the execution creditor asked for a directed verdict, and the judge directed a verdict in favor of the execution creditor. Whereupon this writ was allowed to review the proceeding. See City Bank v. O'Mara, 88 N. J. Law, 499, 97 A. 149.

A direction is correct practice in a proper case, where the claim of property is tried by the judge under a statute providing that the court is to proceed "as in other cases of trial by jury." Central Pennsylvania, etc., Co. v. Court of Common Pleas of Hudson County, 112 N. J. Law, 22, 169 A. 712, 713; Folwell v. Fuller, 53 N. J. Law, 572, 22 A. 345; Levinson v. Godfrey, 79 N. J. Law, 212, 74 A. 278; Reiman v. Wilkinson, Gaddis & Co., 88 N. J. Law 383, at page 385, 96 A. 52. But to justify a direction in any case, no material fact should be in substantial dispute.

That Sendar was the Owner of the chattels at the time of making the distress, which was In June of 1932 (the sale in distress was about June 22 of that year), seems undisputed. The suit in the district court was begun July 12th, and the execution and levy were some days later. Unless the...