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Power Building and Loan Association v. Ajax Fire Insurance Co.

Decided: January 12, 1934.

POWER BUILDING AND LOAN ASSOCIATION, PLAINTIFF-RESPONDENT,
v.
AJAX FIRE INSURANCE COMPANY, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the appellant, John S. Foster.

For the respondent, Joseph Kraemer and Edward Gaulkin.

PER CURIAM.

This cause was previously before this court and the judgment then under review was reversed solely because the stipulated facts before the trial court did not "disclose whether the amount brought at this foreclosure sale was sufficient to satisfy the plaintiff's mortgage in full or whether it was insufficient for that purpose * * *."

The cause went back to the trial court and a retrial resulted in the judgment in favor of the plaintiff now under review. At this retrial the proofs lacking at the first trial were supplied.

Upon this appeal the grounds for reversal argued, with one exception, are exactly the same presented under the former appeal and by us disposed of adversely to the appellant as clearly appears from an opinion of the late Chief Justice Gummere, reported in 110 N.J.L. 256.

The additional ground for reversal, before referred to, is urged under point 5 of appellant's brief and is: "That the retrial of this action was barred by the period of limitations in the policy."

Here it is urged that the judgment of this court upon the previous appeal amounted to a finding that at the first trial the plaintiff below should have been nonsuited and that, therefore, the second trial, resulting in the judgment now under review, was erroneous, and was in fact the trial of a new action commenced more than twelve months next after the fire, in violation of an express provision to the contrary in the contract of insurance.

The first judgment was reversed for want of proof of loss to the plaintiff and the cause remitted to the trial court "to be proceeded with in accordance with this judgment and the practice of said court."

It is to be noted that this court reversed the first judgment for total lack of proof of loss to the plaintiff, and that the cause was remitted generally to the trial court without specific direction as to the entry of any particular judgment as between the parties.

Where this is the situation, a retrial is called for and proper. 4 C.J. 1239, ยง 3299; Shotwell's v. Dennman, 1 N.J.L. 296; Osborne v. Tunis, 25 Id. 633, 664; Passaic National Bank v. Knapp, 110 Id. 16; affirmed, 10 N.J. Mis. R. 190. In the last of these cited cases a trial was had in the District Court, upon a promissory note whereon Knapp was an endorser and judgment went against him. Upon appeal the Supreme Court reversed the judgment as to Knapp for lack of proof of proper notice of dishonor and the remittitur read: "It is thereupon ordered that the judgment of the said District Court be in all things reversed so far as the same pertains to the defendant-appellant Karl Knapp set aside and for nothing holden; costs of appeal ...


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