Intiso v. State

• Decision Date: 10 November 1902
• Citation: 53 A. 206,68 N.J.L. 588
• Parties: INTISO v. STATE (METROPOLITAN SAVINGS & LOAN ASS'N, Prosecutor).
• Court: New Jersey Supreme Court

53 A. 206

68 N.J.L. 588

INTISO

v. STATE (METROPOLITAN SAVINGS & LOAN ASS'N, Prosecutor).

Supreme Court of New Jersey.

Nov. 10, 1902.

(Syllabus by the Court.)

Certiorari to Orange district court.

Certiorari by the state, on the prosecution of the Metropolitan Savings & Loan Association, against Giacomo Intiso. Judgment reversed.

See 52 Atl. 1133.

Argued June term, 1902, before GARRISON and COLLINS, JJ.

Samuel F. Leber, for prosecutor.

Win. A. Lord, for defendant.

COLLINS, J. In a suit in the district court of the city of Orange, brought to recover the withdrawal value of 25 shares in an association organized under "An act to encourage the establishment of mutual loan, homestead and building associations" (Revision approved April 9, 1875; 1 Gen. St. p. 331), the plaintiff recovered the judgment now under review. The case as first presented to this court was defective, and 30 days' time was given the plaintiff in certiorari to perfect the return, in default whereof the judgment was to be affirmed. 66 N. J. Law, 157, 52 Atl. 1133. After affirmance because of such default, the return was perfected, but this court refused to consider the case. Afterward, on due procedure, the judgment of affirmance was, at the February term, 1902, set aside, and it was ordered that the argument of the writ should be brought on at the present term. The cause being moved, the point is made in limine by the defendant in certiorari that the default has not been removed. We think that the effect of the latest order of the court was to remove it, and that the case must now be considered on its merits.

The membership forming the foundation of the suit dates from June 1, 1898, at which time the constitution of the association provided that any member having made 12 monthly payments on shares not pledged for loan, and not liable for fees, dues, or other charges, might apply to withdraw such shares, and 60 days thereafter should be entitled to receive the amount paid thereon, with interest at 4 per cent., averaged, less a withdrawal fee of $1 per share. The constitution further provided that no more than 50 per cent. of the dues received in any month should be applicable to the payment of withdrawals without the consent of the board of directors of the association, and that withdrawals should be payable in the order of application. It was proved in the case in hand that up to the time of the trial the directors of the association had paid out on precedent withdrawals more than the required percentage of dues. Nevertheless the court gave judgment in favor of the withdrawing member for the full withdrawal value of his shares, without any deduction. The ground of decision was the provision of the organic law of the association that its charter should be subject to alteration, amendment, or repeal, as applied to a supplement approved March 24, 1899 (P. L. p. 357), which provides that a withdrawing shareholder shall be paid "not less than the sum of his installment paid in,...