Brindze v. Atl. City Policemen's Beneficial Ass'n

• Decision Date: 10 March 1909
• Citation: 75 N.J.E. 406,72 A. 435
• Parties: BRINDZE v. ATLANTIC CITY POLICEMEN'S BENEFICIAL ASS'N.
• Court: New Jersey Court of Chancery

72 A. 435

75 N.J.E. 406

BRINDZE

v. ATLANTIC CITY POLICEMEN'S BENEFICIAL ASS'N.

Court of Chancery of New Jersey.

March 10, 1909.

Bill by Bernard Brindze against the Atlantic City Policemen's Beneficial Association. Decree for complainant.

The bill seeks a discovery of certain money which came to the hands of defendant association, and a decree that complainant is entitled to the application of the money to the payment of his claim, and also an injunction against the ad interim disposition of the funds in question, and an injunction against the further prosecution by defendant association of a pending action at law, in which action an attachment has been levied on the funds. The funds in controversy arose from the sale of tickets of admission to a circus known as the "Atlantic City Policemen's Circus." The Berger Amusement Company, complainant's assignor, entered into a written contract with the Atlantic City Policemen's Beneficial Association, dated July 25, 1908, wherein the amusement company agreed to institute and conduct at Atlantic City a circus for four days during the week beginning Monday, August 24, 1908, and to give two performances daily, weather permitting, and to furnish the "amusement enterprise" complete at their own cost and expense. The beneficial association agreed to supply at its expense a suitable location and necessary licenses and to sell the tickets of admission. The first $5,000 derived from the sale of tickets or other revenues was to go to the amusement company. All moneys received in excess of that amount were to be divided equally between the amusement company and the beneficial association. The contract also contained the following stipulation:

"The party of the first part further agrees to open a bank account and deposit all money derived from the sale of tickets and any and all other sources in one of the Atlantic City banks, but it is understood that the party of the first part is not to draw out of the bank any of the above money until their show is on the ground."

On August 4, 1908, the amusement company executed an assignment to complainant of the first $2,700 which should be deposited pursuant to the contract referred to. The assignment is absolute in form and contains an irrevocable power of attorney in favor of the assignee. The circus arrived at Atlantic City pursuant to the contract, but owing to a severe storm it was impossible to give a performance until Friday of the week named in the contract. Before the performance of that day the circus actors refused to act unless paid in advance, and in order to enable the show to proceed it became necessary for the beneficial association to guarantee the amounts demanded by them. The same conditions arose on the following day, and the same course was adopted. The guaranty of wages referred to was made and the money was paid by the beneficial association in fulfillment of its guaranty with the consent of the amusement company, which consent was given on the day the guaranty was made. Complainant, as assignee of the first $2,700 of revenues to be received, asked an injunction against a pending proceeding at law in attachment against the fund, and also sought to recover from the beneficial association the funds on hand and such additional amount as will be necessary to satisfy the amount due to complainant under his assignment. The testimony is not in entire harmony as to whether the beneficial association received notice of the assignment prior to the time they guaranteed the application of the money to the payment of wages, but the evidence discloses that such notice was undoubtedly received by the beneficial association prior to that time.

Thompson & Cole, for complainant Eli...