On appeal from the Supreme Court, whose per curiam opinion is reported in 12 N.J. Mis. R. 18.
For the appellant, Spaulding Frazer.
For the respondent, Samuel Koestler.
The opinion of the court was delivered by
PERSKIE, J. This appeal brings up for review a judgment of the Supreme Court, which in turn affirmed the action of the learned judge of Union County Circuit Court, in striking out the answer and counter-claim filed by the defendant-appellant (hereinafter called defendant) and entering a summary judgment in favor of the plaintiff-respondent (hereinafter called plaintiff).
On July 2d, 1932, plaintiff filed suit against defendant on its past due and protested note, dated April 2d, 1932, in the sum of $14,000 and made payable three months after date. Defendant admitted that no part of this note had been paid but claimed that it was not due and owing. This claim is based on the facts set out in its answer and counter-claim, and is substantially as follows:
Prior to January 3d, 1929, defendant was the owner of one hundred and fifteen shares of the capital stock of the plaintiff bank, represented by stock certificate No. 575, although legal title thereto was in the name of one Herman Jacobson. On the day last mentioned, with the knowledge and consent of the defendant, the said Jacobson sold the aforesaid one hundred and fifteen shares of stock to one John J. Stamler and as part of the purchase price accepted
a small amount of cash and Stamler's note for the balance with an agreement that the shares of stock were to be held by Jacobson, as collateral security for the payment of the note. The note was reduced from time to time and on August 11th, 1931 (the then face amount thereof being $20,000), Jacobson delivered to plaintiff, as bailee, the stock as represented by certificate No. 575, and obtained the following receipt therefor:
Received from Herman Jacobson, certificate No. 575 covering one hundred fifteen (115) shares Elizabeth Trust Company stock which is to be held as trustee and to ...