130 A. 442 | N.J. | 1925
After the defendant had pleaded non vult in the Hudson Sessions to an indictment for atrocious assault and battery, he undertook to settle a judgment against him in this action for damages for the sum of $25,000 growing out of the same assault. A rule to show cause had been granted to vacate the judgment. The sentence to be imposed in the criminal prosecution was suspended by Judge Lazarus, now deceased, until the civil action had been tried. When judgment was rendered in that action the attorney for the defendant undertook to settle the same with the plaintiff's attorney. Various sums ranging from $500 to $2,000 were offered in settlement, but the plaintiff's attorney rejected them all. Finally, in the presence of Judge Lazarus, it was agreed between the respective attorneys that $2,000 *448 would be paid to the plaintiff's attorney, and Judge Lazarus, doubtless considering the payment of that sum the equivalent of the imposition of a legal penalty, suspended sentence in the criminal case. As a result, proceedings upon the rule to show cause in the civil cause were discontinued. The agreed sum of $2,000 was borrowed by defendant, he, himself, being penniless, from a friend, who paid it with the understanding that it was to be accepted as a settlement of the judgment, and a satisfaction of the criminal conviction. The money was thereafter paid by one of defendant's attorneys to the attorney for the plaintiff, who he says accepted it in full settlement of the judgment. No receipt or satisfaction was taken for the payment of the money, and thereafter Judge Lazarus died, thus complicating the situation.
The present application is presented upon a rule to show cause why the civil judgment should not be satisfied by order of the court. The testimony taken under the rule is of a conflicting character, the attorneys for the plaintiff insisting that the sum paid was upon account, and the attorneys for the defendant insisting that it was in final settlement not only of the judgment in the civil suit, but also was accepted by Judge Lazarus as the equivalent of a penalty in the criminal conviction, in pursuance of which he suspended operations of the sentence of one year in the county penitentiary.
A number of witnesses, who were present before Judge Lazarus when the proposition of settlement for $2,000, as is alleged, was made, testify that it was made in settlement of the civil judgment, and that conclusion seems to be substantiated by the fact that the sentence in the criminal prosecution was suspended by Judge Lazarus. No sufficient reason is apparent why the Court of Sessions should adopt such action, except upon the theory that the payment of the money being satisfactory to the parties as a settlement inter sese was sufficient to operate as a monetary penalty in punishment of the defendant in the conviction.
Nor is any logical reason apparent why a third party would supply the fund in question, except upon the understanding that the occurrence before Judge Lazarus, where he was *449 present, convinced him that the defendant would be released from further prosecution both upon the criminal conviction and under acapias in the civil suit. Such is my conclusion from the testimony, and from the circumstances surrounding the transaction.
The legal question presented is whether the acceptance of a lesser sum than the face of the judgment, in the absence of a release or satisfaction piece, can operate by agreement of the parties to legally discharge the judgment. Ordinarily, the rule is to the contrary. Decker v. Smith,
The defendant therefore is entitled to a rule directing that the judgment be satisfied of record. *450