Polkowitz v. Goldberger

• Decision Date: 08 August 1931
• Parties: POLKOWITZ v. GOLDBERGER.
• Court: New Jersey District Court

156 A. 1

POLKOWITZ

v. GOLDBERGER.

District Court of Perth Amboy, New Jersey.

Aug. 8, 1931.

Syllabus by the Court.

In the absence of any equities or any insolvency, an unmatured debt cannot be set off against a claim for funeral expenses of decedent debtor.

Suit by Joseph Polkowitz against Melvina Goldberger, executrix of the estate of Klara Weiss, in which plaintiff attached moneys to the credit of decedent in the First National Bank.

Decree ordering bank to pay amount of judgment recovered by plaintiff against estate.

Jacob Polkowitz, of Perth Amboy, for plaintiff.

Lewis Jacobson, of Perth Amboy, for defendant.

GOLDBERGER, J.

The plaintiff instituted a suit by attachment on or about the 10th day of April, 1931, against the defendant to recover funeral expenses incurred in burying Klara Weiss, deceased, whose death occurred February 8, 1931. The writ was duly executed on the 11th day of April, 1931, by attaching moneys to the credit of the decedent in the First National Bank, which moneys the bank admitted was on deposit at that time. Final judgment was entered on the 5th day of June, 1931, in the presence of the defendant, who entered an appearance at that time. Thereafter, a rule was entered ordering said bank to show cause why moneys attached should not be paid to the plaintiff to satisfy the judgment.

The bank resists such payment on the grounds that the attachment is illegal, and therefore not binding on it; and further claims a right of set-off, alleging that the deceased was indebted to it on a note which became due on February 19, 1931.

The bank can make no objection to the validity of the judgment where the executrix, as in the instant case, waived her right to do so, if any she had, by entering her appearance.

The great weight of authority appears to be against the right to set-off, where the debt has not matured. Jordan v. National Shoe & Leather Bank. 74, N. Y. 467, 30 Am. Rep. 319; Kortjohn v. Continental Bank, 63 Mo. App. 166; Bank v. Proctor, 98 Ill. 558; Bradley v. Thompson, 98 Mich. 449, 57 N. W. 576, 23 L. R. A. 305, 39 Am. St. Rep. 565 (see 46 L. R. A. [N. S.] 1059, for compilation of cases).

New York, while asserting the broad general proposition, qualifies it in two ways: First, if the note is a demand note, and second, if the estate is insolvent.

The following cases cited by counsel for the defendant, Camden National Bank v. Green, 45 N. J. Eq. 546, 17 A. 689; Feick v. Hill Bread Co. (N. J. Ch.) 99 A. 851, are not in point.

In the first case, the court permitted set-off on equitable principles and on facts not present in the instant case. In the second case, the estate was declared insolvent and the question of set-off was not raised.

In the more recent case of Kurtz v. County National Bank, 288 Pa. 472, 136 A. 789, 51 A. L. R. 1475, the court holds that where insolvency intervenes, bank deposits cannot be appropriated in satisfaction of unmatured debt, and where, as in ...