Mazzolla v. Wilkie

Decision Date20 March 1907
Citation72 N.J.E. 722,66 A. 584
PartiesMAZZOLLA v. WILKIE et al.
CourtNew Jersey Court of Chancery

Bill by Pasquale Mazzolla against Edwin Wilkie and others. On demurrer to bill. Demurrer dismissed.

McCarty & McMahon, for complainant. Melosh & Morten, for demurrant Edwin Wilkie.

GARRISON, V. C. This is a demurrer to a bill. From facts charged in the bill the following sufficiently appears: The complainant was the beneficiary named in life insurance policies upon the life of his wife to amounts aggregating $4,000, payable to him at her death. The same accident which caused her death, namely; the leakage into their sleeping apartment of illuminating gas, seriously affected him, so that he was taken to a hospital for treatment. While in the hospital, Wilkie, the agent who had effected the insurance, prevailed upon the complainant to give to him a power of attorney to collect the insurance money. He effected this by assuring the complainant that he was the only one who could collect the money. The complainant is an Italian, who speaks and understands the English language with great difficulty. Subsequently, upon representations by Wilkie that the first power of, attorney was insufficient, the complainant made a second power of attorney to Wilkie, in which the following words were fraudulently inserted: "To pay all necessary and lawful expenses for the proper release and collection of each of said policies, and, after paying all necessary and legal expenses thereon or arising thereunder, to retain to himself for his services, the amount hereto agreed between us for that purpose, and to pay me the balance in his hands as soon as the same is received by him from the said companies. * * *" It is charged that the complainant never made any agreement with said Wilkie to pay him any sum for his services. Subsequently the money was collected by Wilkie, and, upon the complainant applying to him for the same, Wilkie informed the complainant that he had deposited the money in the hands of his lawyer, Henry J. Melosh, of Jersey City. The complainant thereupon applied to Melosh, who refused to pay him the money, or any part thereof, unless complainant would give to him one-half thereof to pay to Wilkie pursuant to an agreement which Melosh stated the complainant had made with Wilkie. There is then a charge that the agreement as alleged was procured by fraud from the complainant, and that false representations were made by Wilkie. The prayer is that the money in the hands of Melosh may be decreed to be held in trust for the complainant, and that Melosh or Wilkie may be decreed to pay the complainant, and that the alleged agreement may be decreed null and void, and that, in the meantime, Melosh and Wilkie be restrained and enjoined from paying out or disposing of the said money.

It is difficult, because of the phraseology of the bill and its construction, to determine whether the pleader intends to charge that the power of attorney was procured by fraud and misrepresentation, or that the agreement referred to in the power of attorney was so...

To continue reading

Request your trial
3 cases
  • Prudential Ins. Co. of Am. v. Merritt-Chapman & Scott Corp.
    • United States
    • New Jersey Court of Chancery
    • August 5, 1932
    ...Hubbard v. International Mercantile Agency, 68 N. J. Eq. 434, 59 A. 24; Dawson v. Leschziner, 72 N. J. Eq. 1, 65 A. 449; Mazzolla v. Wilkie, 72 N. J. Eq. 722, 66 A. 584. In fraud cases there can be no question of jurisdiction in this court, but only as to the propriety of its exercise. L. M......
  • Downs v. Jersey Cent. Power & Light Co.
    • United States
    • New Jersey Supreme Court
    • October 5, 1934
    ...Hubbard v. International Mercantile Agency, 68 N. J. Eq. 434, 59 A. 24; Dawson v. Leschziner, 72 N. J. Eq. 1, 65 A. 449; Mazzolla v. Wilkie, 72 N. J. Eq. 722, 66 A. 584; Krueger v. Armitage, 58 N. J. Eq. 357, 44 A. 167; 21 C. J. 109. In a case such as this there may be cancellation of the c......
  • Manners v. Manners
    • United States
    • New Jersey Supreme Court
    • May 14, 1907

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT