Kanter v. Sec. Trust Co. of Paterson

• Decision Date: 14 March 1933
• Docket Number: No. 33.,33.
• Citation: 165 A. 430
• Parties: KANTER v. SECURITY TRUST CO. OF PATERSON.
• Court: New Jersey Supreme Court

165 A. 430

KANTER

v. SECURITY TRUST CO. OF PATERSON.

No. 33.

Supreme Court of New Jersey.

March 14, 1933.

Syllabus by the Court.

The defendant held certain promissory notes of plaintiff's testator. After his death, plaintiff made a deposit to her account as executrix of moneys belonging to the estate. Held, that defendant was not entitled to set off the debt due on the notes against the moneys deposited to the credit of plaintiff as executrix.

Appeal from Court of Common Pleas, Passaic County.

Action by Frieda Kanter, executrix of the will of Joseph Kanter, deceased, against the Security Trust Company of Paterson, in which the defendant filed counterclaim. From an adverse judgment, defendant appeals.

Affirmed.

Argued January term, 1932, before PARKER and CASE, JJ.

Albert Comstock, of Paterson, for appellant.

Emanuel Shavick, of Paterson, for respondent.

PARKER, Justice.

The trial court struck out the answer and counterclaim and entered judgment for the amount of plaintiff's claim with interest.

The essential facts, with perhaps one exception, are stipulated. The question of law relates to the right of set-off.

Plaintiff is executrix of the will of Joseph Kanter, deceased, who died October 20, 1930. At the time of his death he was indebted to the defendant on a note for $1,000 which matured on the day after he died, and on another note for $2,000, which matured December 8, 1930. It does not appear that there was any balance to his credit on deposit account.

The plaintiff, having qualified as executrix, opened an account in that capacity with the defendant about December 1, 1930, by depositing therein $5,211.04. The source of this money is not stated. She drew various checks against this account, which were duly honored, but presently found that on January 9, 1931, defendant had charged her account as executrix with the principal and interest of the two notes, amounting to $3,024. Demand for this money being made and refused, she brought this present suit.

It is alleged in the moving affidavit that the estate is insolvent, but it docs not appear that there has been any adjudication of that condition. However, we deem the point illustrative rather than determinative.

The matter of set-off, while fundamentally simple, presents a number of difficulties in its application, as our cases will show. Instances are Bateman v. Connor, 6 N. J. Law, 104; Receivers of President, etc., of People's Bank v. Paterson Gaslight Co., 23 N. J. Law, 283; Crisp v. Dunn, 56 N. J. Law, 355, 29 A. 166; Godkin v. Bailey, 74 N. J. Law, 655, 65 A. 1032, 9 L. R. A. (N. S.) 1134; Stone v. New Jersey & Hudson River Railway & Ferry Co., 75 N. J. Law, 172, 66 A. 1072; Roseville Trust Co. v. Barney, 89 N. J. Law, 550, 99 A. 343, reversing 88 N. J. Law, 146, 96 A. 69. The doctrine being essentially equitable, rules of equity have been applied freely, even at law and even in mitigation of statutes. In whatever aspect the matter is viewed, two principles seem fairly clear. The first is that there should be identity of parties to both claims; and,...