Hirsch v. Ollendorf

• Decision Date: 22 January 1937
• Docket Number: No. 54.,54.
• Parties: HIRSCH v. OLLENDORF.
• Court: New Jersey Supreme Court

189 A. 82

HIRSCH

v. OLLENDORF.

No. 54.

Court of Errors and Appeals of New Jersey.

Jan. 22, 1937.

Syllubus by the Court.

1. The holder of a note payable to order cannot recover, on his possession alone, but must prove the genuineness of the indorsement by the payee or the authority of the person purporting to act as agent to affix the signature of the payee where the issue is raised.

2. When the plaintiff does not prove his case as pleaded and does not move to amend, a nonsuit is not erroneous.

3. The "scintilla" rule of evidence does not obtain in this state.

The CHIEF JUSTICE, and HEHER, Justice, and RAFFERTY, Judge, dissenting.

Appeal from Circuit Court, Essex County-Action by Harry Hirsch against George Ollendorf. From a judgment of nonsuit, the plaintiff appeals. Affirmed.

See, also, 119 N.J.Eq. 225, 181 A. 879.

Harry A. Augenblick, Bernard Freedman, and Koehler, Augenblick & Freedman, all of Newark, for appellant.

Milton M. Unger, of Newark, for respondent.

CASE, Justice.

The appeal is from a judgment of nonsuit rendered against plaintiff in the Essex county circuit court at the close of his case. The suit was to recover on a promissory note made by the defendant. The granting of the nonsuit is the single ground of appeal.

The complaint, filed October 22, 1935, alleged that on October 23, 1929, defendant executed the note to the order of National Light & Electric Company, a corporation, in the amount of $10,000, payable four months thereafter; that subsequent to execution and before maturity, and for a valuable consideration, the payee indorsed the note to plaintiff, whose property it now is; that by that assignment there became due to the plaintiff the sum of $5,000 with interest, payment of which had been demanded and refused. The answer admitted the giving of the note to the corporation but denied all allegations of events subsequent to that act. Separate defenses were set up, among them that the note had been paid by the defendant, repossessed by him and placed among his personal papers, where from it was later unlawfully taken by plaintiff, and that the indorsement to plaintiff was made by the plaintiff himself without the authority of the payee corporation. Plaintiff's reply joined issue on the answer, admitted so much of the separate defenses as alleged that at the execution of the note defendant was the president and plaintiff was the secretary and treasurer of the payee corporation and either denied or pleaded lack of information as to the remainder.

There was, therefore, an issue as to whether or not the indorsement on the note—"National Light & Electric Co. By Harry Hirsch Secretary & Treasurer"— was authorized by the payee. Plaintiff entered upon the trial with further notice that that was a live and active issue. Immediately at the close of plaintiff's opening defendant moved, and was denied, a nonsuit upon the ground that the opening did not disclose any facts from which an affirmative disposition of that issue could be presumed.

The by-laws of the corporation were used in the cross-examination of the plaintiff, were marked for identification and are printed by the respondent as a supplement to the state of case. Appellant objects, and we think with reason, that the exhibit may not be used here, as it was neither offered nor admitted in evidence. Appellant, however, was examined on the contents of the by-laws with the document before him, and he answered without hesitation or reservation a question based on the...