Manowitz v. Kanov

• Decision Date: 10 April 1931
• Docket Number: No. 77.,77.
• Citation: 154 A. 326
• Parties: MANOWITZ v. KANOV et al.
• Court: New Jersey Supreme Court

154 A. 326

MANOWITZ

v. KANOV et al.

No. 77.

Court of Errors and Appeals of New Jersey.

April 10, 1931.

Appeal from Circuit Court, Hudson County.

Action by Jack Manowitz against Esy Kanov and others. From the judgment, plaintiff appeals.

Affirmed.

On appeal from a judgment of the Hudson circuit court, in which Judge Ackerson delivered the following opinion:

This matter comes before me upon a rule obtained by the defendant Benny German, and directing Louis Feinstein, assignee of the defendant Esy Kanov, to show cause why the judgment for $24,000, recovered by the plaintiff Jack Manowitz against all the defendants herein and assigned by said plaintiff to the defendant Esy Kanov and by him assigned to said Louis Feinstein, should not be canceled of record and the last execution issued thereon by the said Louis Feinstein returned by the sheriff of Hudson county for cancellation, and the property levied upon by virtue of said execution released from such levy.

From the testimony taken under the rule and from the records of the court and in public offices of the county of Hudson, it appears that the aforesaid judgment was recovered by the plaintiff, Jack Manowitz, against all of the above-named defendants on October 21, 1927, in a tort action wherein all of the defendants were charged as joint tort-feasors with having conspired to drive the plaintiff out of business as a live poultry dealer. Execution was immediately taken out and a levy made upon property of the defendants including that of the defendant Benny German.

On February 15, 1928, the defendant Esy Kanov paid the plaintiff herein $10,000 for said judgment and took a written assignment thereof to himself on the same date, which assignment was not recorded in the Hudson county clerk's office until June 23, 1928.

In the meantime, on March 9, 1928, the defendant Benny German, upon notice to the plaintiff Jack Manowitz, obtained from the judge of the circuit court, before whom the action was tried, an order in which it is recited that said judgment had been paid and satisfied, and directing the sheriff to forthwith release all levies and attachments made by virtue of said execution.

Thereafter, on October 2, 1929, the said Esy Kanov assigned said judgment in writing to Louis Feinstein for the expressed consideration of one dollar and other good and valuable considerations, which assignment was recorded in said office on October 3, 1929. On October 4, 1929, said Louis Feinstein, the assignee of the judgment debtor, Esy Kanov, caused another execution to l>e issued on said judgment against all of the defendants for the full amount thereof, and a levy thereunder was made upon the personal property of the defendant Benny German, who had not contributed anything to the sum of $10,000, which had been paid by the defendant Esy Kanov to the plaintiff. In this situation the defendant Benny German applied for and obtained the aforesaid rule to show cause directed to the said Louis Feinstein as aforesaid.

Several reasons are urged by the defendant Benny German in support of this rule, among them being the proposition that the judgment in question was adjudged to be satisfied by the aforesaid order of the circuit court judge made on March 9, 1928, which released all levies under the first execution above mentioned. It seems sufficient, however, to deal with the interesting and fundamental question of whether a joint tort-feasor, who has purchased the judgment from his judgment creditor and taken an assignment thereof to himself individually, may reassign the judgment to a third party so as to enable the latter to issue execution thereon and recover as against a noncontributing joint tort-feasor.

The rule is firmly settled in this state that there can be no contribution between joint tort-feasors, and this is so whether the wrong is the result of force or procured merely from ignorance or carelessness, the reason being that the law will not undertake to adjust the burdens of misconduct. Newman v. Fowler, 37 N. J. Law, 89, Public Service Ry. Co. v. Matteucci, 105 N, J. Law, 114, 143 A. 221 (E. & A.).

And it is also generally accepted as settled that one judgment debtor, upon paying the judgment recovered against himself and others as joint tort-feasors, and taking an assignment thereof in his own name individually, does not acquire thereby any right of contribution as against the noncontributing judgment debtors. 34 C. J. gi§ 1063 and 1064; Boyer v. Bolender, 129 Pa. 324, 18 A. 127, 15 Am. St. Rep. 723; Adams v. White Bus Line, 184 Cal. 710, at page 713, 195 P. 389; and the case of Brown v. White, 29 N. J. Law, 514, 80 Am. Dec. 226, holding that the payment of a judgment by one joint debtor will not operate to satisfy the judgment where it appears that the payment was not intended to have that effect, is not contrary to the general rule previously expressed, because the judgment in the last-cited case arose out of a contractual obligation where the right of contribution is, of course, recognized, and also because the court was very careful to specify that it...