Potoker v. Klein

• Decision Date: 15 October 1928
• Docket Number: No. 46.,46.
• Citation: 143 A. 375
• Parties: POTOKER v. KLEIN.
• Court: New Jersey Supreme Court

143 A. 375

POTOKER

v. KLEIN.

No. 46.

Court of Errors and Appeals of New Jersey.

Oct. 15, 1928.

(Syllabus by the Court.)

Appeal from Circuit Court, Essex County.

Action by Benjamin Potoker, assignee of Harry Landskroner, against Wigdor Klein. Judgment for defendant, and plaintiff appeals. Affirmed.

Benjamin M. Weinberg, of Newark, for appellant.

John W. McGeehan, Jr., of Newark, for respondent.

KATZENBACH, J. This action was instituted by Benjamin Potoker, assignee of Harry Landskroner, an insolvent debtor, to recover moneys given by Landskroner to the defendant in August, 1923, without consideration. The complaint alleges that on or about August 4, 1923, Landskroner gave to Klein, the defendant, $4,700, which sum was held and received by the defendant for the use and benefit of Landskroner, "and said Wigdor Klein (the defendant) has not returned any part of said sum of $4,700, or any interest which has accrued thereon." The answer filed by the defendant admitted every allegation of the complaint except that which alleged that the defendant had not returned any part of said sum. This allegation the defendant denied. The case came on for trial. Counsel for each party opened. Interrogatories addressed to Klein, admitting the receipt of the sum by him for the use and benefit of Landskroner, were offered by the plaintiff and received in evidence. The plaintiff then rested. The defendant moved for a nonsuit on the ground that the proof of the plaintiff had failed to show that the money had not been repaid and that a present indebtedness existed. Counsel for the plaintiff then asked the trial judge to permit him to open the case and put in proof that the moneys had not been repaid. Notwithstanding the objection of the counsel for the defendant, the trial court exercised its discretion and opened the case. Counsel for the plaintiff then called the defendant as a witness. The defendant was the father-in-law of Landskroner. This witness testified that he had received a check for the amount which he had deposited in his account in a Newark bank, and that from time to time covering a period of approximately six months after the receipt of the money he had repaid to Landskroner, his son-in-law, in various sums in cash, the full amount of the money he had received, and that he owed none of the money. After the admission of this testimony offered by the plaintiff, and the testimony of Mrs. Landskroner to the same effect with reference to sums she had received under similar circumstances, which were the subject-matter of another action with which the present action has no connection, the plaintiff rested. The defendant offered no testimony and rested. Counsel for the defendant then moved for a direction of A verdict in favor of the defendant on the ground that there was no evidence that there was an existing right of action in Landskroner at the time of the appointment of the plaintiff as assignee, and that the plaintiff had not sustained the burden of proof which was cast upon him. The trial judge granted the motion and directed the jury to return a verdict in favor of the defendant. From the judgment entered on this directed verdict, the plaintiff below has appealed.

The sole ground of appeal is that the trial court erroneously directed the verdict when, as a matter of law, the said cause should have been submitted to the jury for its determination. We think the ruling of the trial judge correct. In his remarks to the jury he took the ground that, if the jury returned a verdict in favor of the plaintiff, he would set it aside on the ground that it was against the weight of the evidence. This assumes that there was evidence that the plaintiff had substantiated his claim. While we approve the action of the trial judge in directing the verdict, we do not concur in the reasoning which prompted it. We base our opinion upon the ground that there was no proof offered by the plaintiff of the existence of a present subsisting indebtedness in his favor against the defendant. While it is true that some 3 1/2 years prior to the commencement of this action the defendant had received moneys belonging to Landskroner, this raised no presumption that these moneys were due and owing to the plaintiff. Something else was necessary to be proved, and that is that the moneys were still due from the defendant. This situation the counsel for the plaintiff recognized: First, by inserting in his complaint that "said Wigdor Klein (the defendant) has not returned any part...