On appeal from a judgment of the Hoboken District Court.
For the appellant, Drewen & Nugent.
For the respondent, Archie Elkins.
Before Justices Parker, Donges and Colie.
The opinion of the court was delivered by
DONGES, J. Plaintiff, named as beneficiary in a policy of insurance on the life of her mother, recovered a verdict in the Hoboken District Court. The case was tried without a jury and the defense was that the policy was issued by reason of fraud practiced by the assured in the answers to questions in the application for the policy signed by the assured.
The sole ground of appeal is that:
"The trial court erred in denying defendant-appellant's motion for judgment in its favor, which motion was made at the conclusion of the trial."
If the ground of appeal is taken to mean the refusal of a motion, in effect, to direct a verdict for defendant, it could be granted only because of an utter failure of proof on behalf of plaintiff upon the issue involved. In Israel v. Travelers Insurance Co., 116 N.J.L. 154, the rule was stated to be: "The court must assume as true all testimony which has been presented on behalf of the plaintiff and he must be given the benefit of all lawful deductions therefrom. If this hypothesis will support a verdict for the plaintiff the motion should be denied."
If the trial court would be obliged to deny a motion for directed verdict, if a jury had been empaneled to try questions of fact, then was no error in the refusal in this case. Motions for nonsuit and for directed verdict raise questions of law, not questions of fact.
By R.S. 2:32-204 appeals from District Courts are permitted only "in point of law or upon the admission or rejection of evidence." Duff v. Prudential Insurance Co., 90 N.J.L. 646.
The defense was fraud in the answers of assured. Was the proof as to the fraud such that reasonable minds could differ as to the result to be reached? We conclude that they could not and that the trial judge erred in ...