
    SEVENTY-FIRST STREET AND BROADWAY CORPORATION, v. THOMAS R. THORNE.
    For the plaintiff, Insley, Vreeland and Decker.
    
    For the defendant, Wall, Haight, Carey £ Hartpence.
    
   Campbell, J.

The defendant holds a rule calling upon the plaintiff to show cause why the levy made upon the pension fund of the International Mercantile Marine Company should not be vacated.

The judgment under which the execution in question issued was taken by default in a proceeding in attachment. Thereafter a scire facias issued and was served upon the International Mercantile Marine Company and the trustees of the pension fund of that company. To this a return was made seting up, among other things: “(a) that under the rules and regulations governing said pension fund, the defendant, Thorne, has no right or credit therein which is subject to attachment or execution; * * * (c) that said fund is exempt from attachment, execution, levy or seizure by any alleged creditor of the defendant as a beneficiary of said fund.”

The plaintiff moved to dismiss the return and the matter came on before and was heard by Judge Ackerson, sitting as Supreme Court commissioner, who filed his conclusions in this court. His conclusion is “for the reasons already stated, I am forced to conclude that the defendant has no right or credit in the pension fund in question, and that the funds sought to be reached are exempt from garnishment.”

A judgment denying the motion to strike out the before mentioned return was duly entered in this court on January 29th, 1932. 9 N. J. Mis. R. 99.

On February 2d, 1932, an execution was issued out of this court under the same judgment in attachment under which the scire facias before referred to had issued and the sheriff of Hudson county made the following levy:

“Levied on pension fund money due and to become due to the above named defendant, Thomas E. Thorne, from the International Mercantile Marine Company pension fund levy made by serving Edward F. Briggs, secretary, Hudson Trust Company, agent for International Mercantile Marine Company, February 2d, 1932.” Thereupon the rule now before me issued.

It appears beyond question that under the motion to set aside the return to the scire facias and by the judgment thereunder it was definitely and decisively found and settled that the pension fund in question was not subject to attachment, garnishment or levy.

While that judgment stands it is dispositive of the question before me under the present rule to show cause, which rule will be made absolute and the levy under the execution vacated and set aside. A proper rule, in consonance herewith, may be presented for signing.  