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Indemnity Insurance Co. v. Borough of Pine Hill

New Jersey Supreme Court


Decided: January 25, 1940.

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, CAMDEN SAFE DEPOSIT AND TRUST COMPANY AND FIRST CAMDEN NATIONAL BANK AND TRUST COMPANY, PLAINTIFFS-RESPONDENTS,
v.
BOROUGH OF PINE HILL, DEFENDANT-APPELLANT

On appeal from the Supreme Court.

For the defendant-appellant, Frank Nelson Jess.

For the plaintiffs-respondents, Norcross & Farr (Thomas M. Farr).

Bodine

[124 NJL Page 61]

The opinion of the court was delivered by

BODINE, J. The defendant appeals from a judgment in favor of the plaintiff The First Camden National Bank and Trust Company. It was admitted that the bank had paid to the defendant the sum of $1,000 for which it had recovery, together with interest and costs. The proofs on the motion to strike the complaint and on the motion to strike the answer as insufficient in law reveal the following circumstances.

A taxpayer of the borough delivered to the then borough solicitor a check for $1,000 on account of taxes then due. The check was drawn on The First Camden National Bank and Trust Company and was deposited by the solicitor in his account in the Camden Safe Deposit and Trust Company upon insufficient endorsement. The borough demanding the money so paid from The First Camden National Bank and Trust Company, that bank secured the same from the bank of deposit through its insurance carrier and credited the borough therewith. It also appeared that the borough in subsequent litigation with its then solicitor secured credit from him for the $1,000 so recovered from the First Camden National Bank and Trust Company. The borough was thus in the position that it had twice received the sum of $1,000 due from its taxpayer -- once when the bank satisfied it by the payment of $1,000 so recovered from the First Camden National Bank and Trust Company. The borough was thus in the position that it had twice received the sum of $1,000 due from its taxpayer -- once when the bank satisfied it by the payment of $1,000 paid on an improper endorsement of the taxpayer's check and, secondly, when credit was given to it in its crossaction against its former solicitor for moneys due.

[124 NJL Page 62]

The borough is in the position of one who has received payment of the same debt from two sources. The First Camden National Bank and Trust Company was clearly entitled to recover the money paid to the borough when the borough obtained credit for the same item due from its borough solicitor. The action for money had and received lay and was sufficiently pleaded under our simplified rules of practice to justify recovery. Since the Indemnity Insurance Company of North America and The Camden Safe Deposit and Trust Company were co-plaintiffs and their cause of action was struck, it is to be assumed that such rights as they may have had in the premises were settled by counsel. At all events, they do not appeal.

The judgment is affirmed, with costs.

For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, CASE, BODINE, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, JJ. 14.

For reversal -- None.

19400125


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