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Zlotnik v. Northwestern National Insurance Co.

New Jersey Supreme Court


Decided: January 31, 1936.

HARRY ZLOTNIK, PLAINTIFF-APPELLANT,
v.
NORTHWESTERN NATIONAL INSURANCE COMPANY, DEFENDANT-APPELLEE; HARRY ZLOTNIK, PLAINTIFF-APPELLANT, V. MILWAUKEE MECHANICS INSURANCE COMPANY, DEFENDANT-APPELLEE; HARRY ZLOTNIK, PLAINTIFF-APPELLANT, V. JEFFERSON FIRE INSURANCE COMPANY, DEFENDANT-APPELLEE

On appeal from the Supreme Court.

For the defendants-respondents, Lum, Tamblyn & Fairlie and James Raymond Berry.

For the plaintiff-appellant, Harry J. Weiner.

Wolfskeil

[116 NJL Page 107]

The opinion of the court was delivered by

WOLFSKEIL, J. For the purpose of trial these suits were consolidated. They were based on three policies of fire insurance, each covering a separate building. The policies insured the owner but contained standard mortgagee clauses in favor of the plaintiff as mortgagee. The buildings were under construction and when nearly completed were destroyed by the

[116 NJL Page 108]

same fire. Plaintiff sued for the loss alleged to have been sustained by him, as mortgagee. The defense was fraudulent misrepresentation as to the amount of damages and incendiarism. The jury returned a verdict in favor of the defendants and from the judgments entered thereon plaintiff appeals. Five grounds of appeal were assigned but as only two are argued in appellant's brief the others will be considered as having been abandoned. Sargeant Bros., Inc., v. Brancati, 107 N.J.L. 84, 90; Kempf v. New York, Ohio and Western Railway Co., 112 Id. 118.

The first point argued is that there was not sufficient legal testimony to justify a verdict. This does not state a proper ground of appeal. No judicial action is challenged or complained of nor is the attention of the appellate court directed to any error which is alleged to have been committed during the trial. It is a fundamental rule that the only matters which are proper subjects for determination by an appellate tribunal in proceedings at law are errors alleged to have been committed by the trial court, then excepted to, and which are specifically assigned as grounds of appeal. Booth v. Keegan, 108 N.J.L. 538; State Highway Commission v. Lincoln Terminal Corp., 110 Id. 190; Corby v. Ward, 112 Id. 489.

The second point is that the court erred in not directing a verdict in favor of the plaintiff. Nor is this point available as a ground of appeal. From the state of the case it appears that when the motion for a directed verdict was denied the plaintiff's attorney merely excepted to the ruling of the trial court and said, "I will give my reasons later," but, according to the record, this was never done.

An exception to the denial of a motion is not available unless grounds for the motion were stated when the motion was made. Garretson v. Appleton, 58 N.J.L. 386; Ottowa Tribe v. Munter, 60 Id. 459; Yetter v. Gloucester Ferry Co., 76 Id. 249.

Even assuming that each of the points assigned stated a proper ground of appeal we think there was ample evidence to support the action of the trial court in submitting the case to the jury.

Finding no error the judgments under review are affirmed, with costs.

For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 13.

For reversal -- None.

19360131


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