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Horwitz v. Hudson County National Bank

New Jersey Supreme Court


Decided: May 27, 1940.

GERTRUDE HORWITZ, A MINOR, BY HYMAN HORWITZ, HER NEXT FRIEND, PLAINTIFF-APPELLANT,
v.
HUDSON COUNTY NATIONAL BANK, A NATIONAL BANKING ASSOCIATION, DEFENDANT-RESPONDENT

On appeal from the District Court of the First Judicial District of Hudson county.

For the plaintiff-appellant, Henry Pass.

For the defendant-respondent, Milton, McNulty & Augelli (Joseph Keane).

Before Justices Trenchard, Bodine and Porter.

Bodine

[125 NJL Page 4]

BODINE, J. The plaintiff maintained a savings account in the defendant bank. On January 11th, 1938, she signed for the bank a statement that she was born March 21st, 1918. She was in fact born a year later, but this the bank did not know. On December 8th, 1939, she presented her bank book and a withdrawal slip for her balance of $360.29. The bank refused to pay because the plaintiff was co-maker on two personal loan notes then overdue. One note was made on May 22d, 1939, and the other on September 30th, 1939. At the time these loans were made, it appeared from the bank records signed by the plaintiff, that she was no longer a minor and had sufficient moneys on deposit to justify the credit.

The erroneous date of the representation as to age in the specification is immaterial since the proofs show a representation as to age before any of the lending transactions. Besides there was no surprise. The proofs, carefully examined, support the findings by the learned trial judge of an estoppel. LaRosa v. Nichols, 92 N.J.L. 375; Brinkmann v. Dorsey Motors, Inc., 121 Id. 115.

The plaintiff, it is conceded, is entitled to the difference between the amounts on deposit and the aggregate of the loans on which she is co-maker and which are in default. She has not sought this but the entire security for her co-maker loans.

The judgment is affirmed.

19400527


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