BOND STORES, INC. v. FRIEDMAN, 125 N.J.L. 80 (1940)

13 A.2d 493

BOND STORES, INC., A CORPORATION, PLAINTIFF-RESPONDENT, v. ROBERT W. FRIEDMAN, DEFENDANT-PETITIONER.

Supreme Court of New Jersey.Argued May 8, 1940 —
Decided May 25, 1940.

1. On petition to review conviction for contempt of court in District Court, the Supreme Court will consider the matter de novo.

2. The burden of establishing that treasurer of company was guilty of contempt for failure to comply with District Court order directing company to withhold part of treasurer’s wages on account of judgment against him was upon the respondent who made the charge.

3. Proofs held not to establish guilt of petitioner adjudged in contempt for failure to comply with wage execution order of District Court.

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4. Order for execution against wages that did not state amount or percentage of wages to be retained by employer was clearly defective and a nullity.

On petition to review conviction of contempt in District Court.

Before Justices TRENCHARD, BODINE and PORTER.

For plaintiff-respondent, Julius P. Litwack (Max W. Meisner, of counsel).

For the defendant-petitioner, Van Sickle, Eichler Marshack
(A. Albert Eichler, of counsel).

PER CURIAM.

The petitioner, Robert W. Friedman, seeks to review his conviction for contempt of court by the Orange District Court.

This is a companion case to Bond Stores, Inc., v. Fleisher 125 N.J.L. 79. In both cases the petitioner had been convicted of the same offense, contempt of court. The law has been sufficiently stated in 125 N.J.L. 79. The facts in this case are somewhat different.

It appears that the respondent obtained a judgment in the said District Court against the petitioner for $47.16; that an order of execution against his wages was made directing the Supreme Furniture Co. to withhold an unnamed amount or percentage of his weekly wages toward the payment of the judgment and to pay the same to plaintiff’s counsel or to the constable. Service of a copy of this order was made upon the bookkeeper of Supreme Furniture Manufacturing Co. of which the petitioner was treasurer. A motion to set aside that order was made but apparently abandoned so while not served on petitioner it doubtless came to his notice.

The order not having been complied with the District Court issuing it made a rule to show cause, returnable before it, why petitioner should not be adjudged in contempt of court. On the return day the court after hearing argument, but apparently without hearing testimony, found the petitioner

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guilty and ordered his arrest. He was later punished by the imposition of a fine of $25.

This court, like in No. 430 supra, in order to review the matter de novo as required by law, ordered that the manner of inquiry into the facts be by depositions to be taken before a designated Supreme Court Commissioner. The burden of proof to establish the truth of the charge was upon the respondent who made the charge. Practically no testimony was taken before the commissioner, certainly none of any help to us. The proofs therefore before us do not establish the guilt of petitioner.

Aside from that we fail to perceive how he could have been guilty of disobeying an order which was clearly defective as this one was because it did not state the amount or percentage of wages which was to be retained by the employer. This omission made the order a nullity.

The conviction is set aside, but without costs.

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