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Polkowitz v. Ewing

Decided: April 11, 1935.

JACOB I. POLKOWITZ, PLAINTIFF-RESPONDENT,
v.
PAUL W. EWING, DEFENDANT-APPELLANT



On appeal from the Perth Amboy District Court.

For the plaintiff-respondent, Jacob I. Polkowitz, pro se.

For the defendant-appellant, William D. Danberry.

Before Justices Lloyd, Case and Donges.

Case

The opinion of the court was delivered by

CASE, J. The case comes to us after retrial following our earlier consideration reported in 12 N.J. Mis. R. 695; 174 A. 339.

The state of demand contains two counts, the first based upon a promissory note of $200, the second upon a so-called stipulation which is as follows:

"In consideration of the above named plaintiff entering into a stipulation with the defendant herein, wherein and whereby the said plaintiff-respondent has waived its right to have the appeal in this cause dismissed for failure of the defendant-appellant to properly prosecute said appeal, and in further consideration of the said plaintiff-appellee consenting to a trial of this appeal on its merits before the above court, I, Paul W. Ewing, attorney for the defendant-appellant do hereby personally guarantee the payment of the judgment heretofore entered in this matter, in the event that the said judgment on a trial of the same on its merits, before the Middlesex Common Pleas Court, is reversed; but in the event that the said judgment is affirmed, then this guarantee is to be void and of no force and effect. A promissory note bearing date April 26th, 1933, will be given by the undersigned to the attorney for the defendant, said note to be for $200 and is given to carry out the terms of the above stipulation."

The state of the case, settled by the District Court judge, shows proofs of broader scope than, and in some respects variant from, those recited on the former appeal. William Weinberger, trading as William Weinberger & Company, had, by Jacob I. Polkowitz, his attorney, secured a judgment in a Small Cause Court against Margo Realty Corporation. An appeal to the Middlesex Common Pleas was taken by the

Margo Realty Corporation but was later dismissed for lack of prosecution. After the Common Pleas had rendered decision for Weinberger, and against Margo, Ewing, attorney for Margo, executed and delivered the above mentioned stipulation and note. Thereupon the appeal was reinstated, tried and decided for Margo and against Weinberger. The finding below was reversed. The payment called for by the note and the stipulation has not been made by Ewing, although plaintiff herein, attorney for Weinberger, has, in reliance upon Ewing's undertaking, paid the amount thereof to Weinberger.

The defendant herein, resting his case in the District Court without the submission of testimony, moved for a directed verdict upon the grounds (1) that the note was non-negotiable and was without consideration to support it and that the plaintiff failed to prove any consideration; (2) that there was no proof that the note was due and payable in accordance with the terms of the stipulation; (3) that the consideration, if any, for the note and the stipulation was illegal, void and contrary to public policy and that both the note and stipulation were therefore unenforceable. Judgment was awarded to the plaintiff, and defendant appeals.

It is unnecessary to consider more than the last ground. The general rule of law applicable to that contention has been stated by our ...


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