Black & White Operating Co., Inc. v. Grosbart

• Decision Date: 20 October 1930
• Docket Number: No. 53.,53.
• Citation: 151 A. 630
• Parties: BLACK & WHITE OPERATING CO., Inc. v. GROSBART.
• Court: New Jersey Supreme Court

151 A. 630

BLACK & WHITE OPERATING CO., Inc.

v. GROSBART.

No. 53.

Court of Errors and Appeals of New Jersey.

Oct. 20, 1930.

Syllabus by the Court.

No person, except in his own cause or in the case of an infant, is permitted to appear and prosecute or defend any action in any court of this state, unless he is a licensed attorney-at-law of the supreme court. Syllabus by the Court.

A corporation may issue a writ of attachment through an attorney-at-law only, whose name must be endorsed on such writ, and it must be represented by an attorney before the court.

Syllabus by the Court.

Corporations, being artificial persons, cannot practice law.

Syllabus by the Court.

Members of the bar only have audience in the courts.

Syllabus by the Court.

Facts of the instant case examined and held to justify the rulings and charge of the trial court.

Additional Syllabus by Editorial Staff. Appeal from Supreme Court.

Appeal from Supreme Court.

Action by the Black & White Operating Company, Inc., against Emil Grosbart. Judgment for plaintiff was affirmed by the Supreme Court (145 A. 105, 7 N. J. Misc. R. 233), and the defendant appeals.

Affirmed.

Harry Levin, of Newark, for appellant.

George F. Seymour, Jr., of Newark, for respondent,

WALKER, Chancellor.

This was a suit in the Orange district court, wherein it was alleged that the defendant, a constable of Essex county, acting as agent for the Black & White Operating Company, under a writ of attachment issued out of the second district court, levied on the goods of Eva Fay, a nonresident of New Jersey, who later paid to the defendant the sum for which the attachment issued; whereupon the proceedings under the writ were discontinued. The plaintiff then requested the defendant to turn over to it the sum so collected as aforesaid, but the defendant continuously refused to pay it over.

From the states of the case, both original and supplemental, the following is made to appear.

Frank Kaul, president of the plaintiff corporation, signed an affidavit in the attachment suit in the district court. Harry Levin, attorney, drew and had Kaul sign the affidavit and directed Grosbart, constable, to serve the process. The attachment was issued out of the second district court, endorsed in the name of Levin, as attorney, and Grosbart, constable, served it. The money demanded was paid to Grosbart under protest; he turned the cash over to Levin, attorney, in whose name the process was endorsed. When the case came up in the district court, Kaul, president, attended and saw and heard Levin, acting as attorney for the corporation, discontinue the matter because the money had been paid. Thereafter Levin sent to the plaintiff corporation an accounting for the moneys so received, deducting the amount of bis fees; but the plaintiff insisted that it had never retained Levin nor Grosbart, and sued the constable for the moneys he had received.

Kaul, president of plaintiff, testified that he took the bill against Fay to the office of a contable named Solsky, where the defendant Grosbart also had his office, and left the bill for collection (not saying with or for whom he left it); that an attachment was issued out of the second district court of Newark on the effects of Fay, and it was settled by payment of the amount to the defendant Grosbart under protest; that Grosbart never paid the money to the plaintiff; that he saw Levin in the office but did not employ him to take the attachment case or collect the claim against Fay, but that he employed only the constable (not saying whom), and did not want an attorney.

Emil Grosbart, defendant, testified that he was a constable and handled the Fay case at request of Levin, attorney; that after the issuance of the writ of attachment defendant paid him the money under protest; that the work in Levin's office, in relation to the attachment, was by I. V. Davis, an attorney with desk room with Levin.

Davis testified that he is an attorney; that he saw Kaul at his office with reference to the Fay matter; that he handled the matter, that Kaul told him to go ahead with the writ of attachment that Levin was not present; that he called Grosbart and instructed him to take out the writ of attachment; that Kaul told him Solsky was not in and he had to have immediate action.

Harry Levin testified that he is an attorney at law; that Davis handled the Fay matter; that Grosbart turned over to him the money paid under protest by Fay; that she having paid, there was nothing further to do in the matter; that he (Levin) sent a check to the plaintiff, less his fee, but the check was returned.

The plaintiff had judgment in this case in the district court and the defendant appealed to the supreme court, contending that his motion for non suit was improperly denied, and that the court erred in its charge to the jury. So says the supreme court in its per curiam. 145 A. 105, 7 N. J. Misc. R. 233. The brief used there by the defendant-appellant has been filed in this court, with the words "Court of Errors and Appeals," pasted over those of "Supreme Court." It contains much more than the argument of those questions. Here, defendant assigns as ground of reversal that the supreme court erred in affirming instead of reversing, the judgment of the district court. This is proper, and entitled appellant to argue in this court all of the grounds assigned in the supreme court. The supreme court affirmed the judgment under review. Grosbart appeals from the supreme court to this court.

In his argument before this court counsel for defendant-appellant argues that the court erred in denying defendant's motion for the direction of a verdict in his behalf. This is an abandonment of the motion to non suit, and is argument addressed only to the denial of the direction of a verdict. The matter stood thus: When plaintiff rested the attorney for the defendant moved for a non suit for defendant Grosbart, which motion was denied and an exception granted; then Grosbart was sworn for the defense, as also were Davis, attorney, and Levin, attorney. Defendant then rested. Motion was made on his behalf for the direction of a verdict on the...