Oliver v. Russo
| Citation | 149 A.2d 213,29 N.J. 418 |
| Decision Date | 17 March 1959 |
| Docket Number | No. A--96,A--96 |
| Parties | Thomas OLIVER and Jean Oliver, Plaintiffs-Appellants, v. Pasquale RUSSO, Defendant-Respondent. |
| Court | New Jersey Supreme Court |
Andrew O. Wittreich, Tenafly, argued the cause for appellants (Arthur J. Messineo, Garfield, attorney).
Fred W. Jung, Jr., Newark, argued the cause for respondent.
The plaintiffs were passengers in Spinella's car when it collided with Russo's car. They sued Russo and gave Spinella a covenant not to sue upon his payment of $50 to each of the plaintiffs. Russo filed a third-party complaint against Spinella who then moved for summary judgment on the basis of the covenant not to sue. The motion was granted and the district court, after hearing testimony, determined that Russo was negligent and ordered that judgment against him be entered in the sum of $250 in favor of Thomas Oliver and $125 in favor of Jean Oliver. Russo then moved that in view of the right of contribution which now exists between joint tortfeasors the clerk should be directed to mark the judgment satisfied as to 50% Thereof. This motion was granted and the plaintiffs' appeal to the Appellate Division, which we certified on our own motion, now seeks to set this ruling aside.
The record does not satisfactorily indicate whether the district court, in fixing the amount of the judgment, credited the defendant with the sum paid to the plaintiffs for their covenant not to sue. Assuming that it did not (and neither brief before us seeks to make any point whatever in this regard), the marking of the judgment satisfied as to 50% Thereof was in accordance with the joint tortfeasor principles expressed in Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 92--94, 110 A.2d 24 (1954) and applied in Smootz v. Ienni, 37 N.J.Super. 529, 117 A.2d 675 (Cty.Ct.1955). We recently declined to revise those principles and find no occasion for doing so in the present case. See Judson v. Peoples Bank and Trust Co., 25 N.J. 17, 34--36, 134 A.2d 761 (1957); 12 Rutgers L.Rev. 533 (1958).
During oral argument it was suggested that perhaps Spinella was not actually a tortfeasor and that until there is a hearing and an adjudication of his negligence the joint tortfeasor principles of Judson may not be applied. See 45 Am.Jur., Release § 38, p. 702 (1943); cf. Aljian v. Ben Schlossberg, Inc., 8 N.J.Super. 461, 465, 73 A.2d 290 (Law Div.1950). This point was not fairly raised in...
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Theobald v. Angelos
...the settling parties (Peoples Bank) was a tortfeasor. We so noted out of an awareness of the issue now before us. In Oliver v. Russo, 29 N.J. 418, 420, 149 A.2d 213 (1959), the appellant sought to present the question but did so for the first time on appeal, asking for a remand to try the i......
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State v. Hudson County News Co.
...but shall not discuss or pass on related issues which were neither briefed nor argued by any of the parties. See Oliver v. Russo, 29 N.J. 418, 420, 149 A.2d 213 (1959); Higgins v. Krogman, 142 N.J.Eq. 691, 694, 61 A.2d 444 (E. & A. In People v. Smith, 161 Cal.App.2d Supp. 860, 327 P.2d 636 ......
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State v. Allen
...appear in the record. See Bd. of Ed. of Elizabeth v. City Coun. of Elizabeth, 55 N.J. 501, 509, 262 A.2d 881 (1970); Oliver v. Russo, 29 N.J. 418, 420, 149 A.2d 213 (1959). Although none of these alternatives was actually used by the trial judges involved in these cases, in both instances t......
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Board of Ed. of City of Asbury Park v. Hoek
...to have any judgment against him satisfied to the extent of 50% Because of plaintiff's settlement with Matthews. See Oliver v. Russo, 29 N.J. 418, 149 A.2d 213 (1959). The use of a special verdict lies within the trial court's discretion. Middlesex Concrete, etc., Corp. v. Carteret, 35 N.J.......