Braun v. Weinberg

• Decision Date: 10 April 1941
• Docket Number: Nos. 6, 7.,s. 6, 7.
• Citation: 19 A.2d 213,19 N.J.Misc. 308
• Parties: BRAUN v. WEINBERG.
• Court: New Jersey Supreme Court

19 A.2d 213

19 N.J.Misc. 308

BRAUN

v. WEINBERG.

Nos. 6, 7.

Supreme Court of New Jersey.

April 10, 1941.

Appeal from Circuit Court, Essex County.

Action on a note by Valentine Braun against Nathan Weinberg. From an order making absolute a rule to show cause why judgment should not be set aside and a new trial granted, defendant appeals.

Appeal dismissed.

Argued January term, 1941, before BROGAN, C. J., and PARKER and PERSKIE, JJ.

Child, Riker, Marsh & Shipman, of Newark (Theodore McC. Marsh, of Newark, of counsel), for appellant.

Slavitt & Slavitt, of Newark (Arthur Slavitt, of Newark, of counsel), for appellee.

PERSKIE, Justice.

The primary and dispositive question requiring decision is whether, in the circumstances exhibited, an appeal lies from an order making a rule to show cause absolute.

Plaintiff's complaint alleges that he is the holder of a promissory note made by defendant on May 2, 1933, in the sum of $1,000, payable three months after date, to the order of Jacob Weinberg; that the note was presented for payment on its due date but payment was refused; and that there is a balance due on said note of $590, plus interest from May 2, 1933, amounting to $221.25.

Defendant's answer consists of a general denial and several separate defenses. None of the separate defenses is involved on this appeal.

The proofs for plaintiff show that the defendant's signature as maker of the note was admitted; that plaintiff advanced the sum of $590 for the note to Jacob Weinberg, the payee whose name was endorsed on the back of the note; that the note was offered and received in evidence; and that there was due on said note the sum of $590 plus interest from its date, amounting to $224.85, or a total of $834.85. Jacob Weinberg is not a party to this suit.

Defendant moved for a nonsuit. The ground urged in support of that motion was that plaintiff had failed to prove the signature of Jacob Weinberg, the payee and endorser. Defendant relied upon the cases of Van Syckel v. Egg Harbor Coal & Lumber Co., 109 N.J.L. 604, 162 A. 627, 85 A. L.R. 300, and Hirsch v. Ollendorf, 117 N.J.L. 404, 189 A. 82. The trial judge granted the motion and judgment of nonsuit was entered.

Thereafter the trial judge on plaintiff's timely application granted a rule to show cause why the judgment entered should not be set aside and a new trial granted. The ground in support of that rule was that the judgment was contrary to law.

The trial judge by his order under date of June 7, 1940, without opinion, made the rule absolute and ordered the case be set down for a new trial. It is from that order that the present appeal is taken. Since Jacob Weinberg was not a party to this suit his signature was not put in issue. Nor did the general denial have that effect. Cf. Mechanics' Trust Co. v. Halpern, 116 N.J.L. 374, 376, 184 A. 744. See Supreme Court rule 58, N.J.S.A. tit. 2. The authenticity of Jacob Weinberg's signature therefore...