Comm'r of Banking and Ins. v. Moresh

• Decision Date: 13 January 1939
• Docket Number: No. 55.,55.
• Citation: 122 N.J.L. 77,3 A.2d 638
• Parties: COMMISSIONER OF BANKING AND INSURANCE v. MORESH.
• Court: New Jersey Supreme Court

3 A.2d 638

122 N.J.L. 77

COMMISSIONER OF BANKING AND INSURANCE

v. MORESH.

No. 55.

Court of Errors and Appeals of New Jersey.

Jan. 13, 1939.

Appeal from Supreme Court.

Proceeding by the State of New Jersey, on complaint of the Commissioner of Banking and Insurance, against Irving Moresh for penalty prescribed for engaging in insurance business without license required by law. From a judgment for defendant, the plaintiff appeals.

Affirmed.

On appeal from a judgment of the Supreme Court entered after a trial without a jury, before Judge Oliphant, who filed the following opinion:

"The above entitled cause was tried before the Court without a jury upon the pleadings and an agreed state of facts.

"These proceedings were instituted under and pursuant to Section 89, R.S.1937, 17: 33-2, of an act entitled 'An Act to provide for the regulation and incorporation of insurance companies and to regulate the transaction of insurance business in this state,' P.L.1902, p. 407, as amended and supplemented, R.S.1937, 17:17-1 et seq.

"The defendant is and has been since 1911 engaged in the glazing business in the City of Bayonne, Hudson County as an individual, and since 1933 has entered into contracts with his customers in the said City of Bayonne, wherein and whereby for a certain money consideration he agreed for a fixed period of time to service the glass store front in the premises of said customers, which service consisted of (1) repairing store front glass by tightening bars or clamps to keep the glass in firm condition and (2) to replace all store front glass tightening bars or clamps to keep the glass in firm condition and (2) to replace all store front glass broken in the said premises. This business is limited solely to properties located in the City of Bayonne. Defendant's liability to replace broken glass is not limited to breakage resulting from his negligent installation thereof or his negligence in improperly servicing same. His business includes the servicing of glass not installed by him in the first instance and not manufactured or sold by him.

"Plaintiff contends that such contracts are those of insurance and that on December 17, 1934, defendant entered into a contract of insurance with one Harry Saloway of Bayonne; that he was unlicensed and unauthorized to effect a contract of insurance in the State of New Jersey and that he did, therefore, violate Section 88 of the Act entitled 'An Act to provide for the regulation and incorporation of insurance companies and to regulate the transaction of insurance business in this state,' being Chapter 134, Laws of 1932 [1902] as amended [R.S.1937, 17:17-12]; and that as a result thereof is liable to the penalty of $500.00 prescribed by Section 89 of said Act, to be recovered in the name of the State of New Jersey on the complaint of the Commissioner of Banking and Insurance. Judgment is demanded in the sum of $500.00.

"The answer denies the allegation of the complaint and among the separate defenses it is set up that Section 88 of the aforesaid Act does not prohibit an individual from carrying on the insurance business as principal.

"There are other separate defenses set out in the answer but they need not be considered h ere as the decision of the Court on the one just above referred to will be dispositive of the entire case.

"A careful reading of 'An Act to provide for the regulation and incorporation of insurance companies and to regulate the transaction of insurance business in this state,' P.L.1902, p. 407 and the subsequent acts supplementing and amending same, down to and including the amendment of 1937, Chap. 162, R.S.1937, 17:17-1 et seq., will disclose nothing in regard to the doing of an insurance business by an individual. The only reference to insurance business by individuals anywhere in the Act is in Section 88. Nowhere in the Act is provision made for an individual to come under the regulations thereof. It has been held on a number of occasions by the courts of this State that the prohibition of the statute relating to the transaction of insurance business does not refer to the acts of individuals and notwithstanding these decisions, the Legislature has persistently refrained from amending the Act in this particular. 'A construction of a statute by the courts supported by long acquiescence on the part of the Legislature or by continued use of the same language or failure to amend the statute, is evidence that such construction is in accordance with the legislative intent. So the re-enactment of a statute after it has been construed by the courts, amounts to a legislative adoption of such...