Kristeller v. First Nat. Bank of Jersey City

• Decision Date: 26 January 1938
• Docket Number: Nos. 9, 10.,s. 9, 10.
• Citation: 119 N.J.L. 570,197 A. 17
• Parties: KRISTELLER v. FIRST NAT. BANK OF JERSEY CITY. SAME v. J. I. KISLAK, Inc.
• Court: New Jersey Supreme Court

197 A. 17

119 N.J.L. 570

KRISTELLER

v. FIRST NAT. BANK OF JERSEY CITY.

SAME

v. J. I. KISLAK, Inc.

Nos. 9, 10.

Court of Errors and Appeals of New Jersey.

Jan. 26, 1938.

Appeal from Supreme Court.

Actions by Lionel P. Kristeller against the First National Bank of Jersey City and against J. I. Kislak, Inc., to recover costs taxed on an order of the Supreme Court staying the operation of an order directing the issuance of an execution against the wages of defendants' judgment debtor and a levy thereunder of 15 per cent. of such wages. From judgments for plaintiff, defendants appeal.

Affirmed.

John I. O'Neill, of Jersey City (Alex R. DeSevo, of Jersey City, of counsel), for appellants. Saul J. Zucker, of Newark, for respondent.

HEHER, Justice.

The object of each action was the recovery —by the attorney of the prevailing party —of costs taxed on an order of the Supreme Court staying the operation of an order directing the issuance of an execution against the wages of William Berkowitz, defendants' judgment debtor, and a levy thereunder of 15 per cent. of such wages.

After the rendition of the judgments against Berkowitz, he filed a petition in bankruptcy. Objections to his discharge were interposed; and, on the assumption that the discharge would be long delayed or eventually withheld, defendants, represented by the same attorney, procured the orders for execution upon his wages. At the instance of Berkowitz, the orders staying the respective executions were entered. These orders carried costs. Upon the refusal of defendants to pay the costs so assessed, the actions were instituted. The answers introduced were struck out as frivolous; and from the consequent judgments defendants appeal.

In substance, the common defense set up in the answers is that respondent has no cause of action for the following reasons, viz.: (1) Failure to make immediate service of a copy of the taxed bill of costs; (2) the sole remedy is by execution in the cause; and (3) the costs are offset by appellant's judgment against Berkowitz.

The first point made on the brief is that the principle of set-off is apposite. Courts of law are possessed of an authority —purely equitable in nature —to apply the doctrine of set-off to mutually enforceable judgments when dictated by considerations of equity and substantial justice. But this is in virtue of their inherent power to control their own suitors and the execution of their process; hence, it is to be exercised by the court wherein resides the judgment against the party seeking satisfaction by way of set-off. Hendrickson v. Brown, 39 N.J.L. 239; McAdams v. Randolph, 42 N.J. L. 332; Brookfield v. Hughson, 44 N.J.L. 285; Terney v. Wilson, 45 N.J.L. 282; Schautz v. Kearney, 47 N.J.L. 56; Phillips v. Mackay, 54 N.J.L. 319, 23 A. 941.

Moreover, while the question has evoked sharply conflicting views in other jurisdictions, it is now the settled rule in this state, lately reaffirmed by this court, that costs —as distinguished from disbursements not actually made by the attorney —though awarded to the client, are the property of his attorney. Hendrickson v. Brown, supra; Schautz v. Kearney, supra; Phillips v. Mackay, supra; Columbia Insurance Co. v. Artale, 112 N.J.Eq. 505, 164 A. 864, affirmed 114 N.J.Eq. 268, 168 A. 304. The equity of the set-off, if the right be conceded for present purposes, does not rise superior to the attorney's absolute interest in the costs. And so the fact that the costs were taxed on an order relating to the enforcement of the very judgment claimed to be the proper subject of set-off is without significance.

Next, it is urged that it was incumbent upon respondent to proceed by petition in the cause for the enforcement of the right.

While this question is also controversial, it is the general rule that an action in assumpsit or debt will lie for the recovery of costs such as these where the court in which the cause reposes lacks authority to reduce the costs to judgment, enforceable by execution, or, it may be added, where that course is not sanctioned by practice. Baird v. Johnson, 14 N.J.L. 120; Cole v. Lunger, 42 N.T.L. 381; Friedlander v. Grand, 114 N.J.L. 548, 177 A. 892. See, also, 15 C.J. 298, 310.

Where costs are an incident of a common-law judgment, their payment can be enforced only by the ordinary process of execution. They are considered a part of the judgment, and there is therefore no occasion to resort to an independent proceeding designed to reduce them to judgment for the purpose of enforcing payment by execution. Ritter v. Kunkle, 39 N.J.L. 618; Aspinwall v. Aspinwall, 53 N.J.Eq. 684, 33 A. 470. But, in the absence of statutory authority, an interlocutory order for the payment of costs is not enforceable by this process. The remedy is by common-law attachment for contempt. Gilliland v. Rappleyea, 15 N.J.L. 138; Ritter v. Kunkle, supra; Aspinwall v. Aspinwall, supra.

Yet, assuming this to be an available remedy in all such cases, it is certainly not exclusive under the instant circumstances. Where, as here, the...