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David Macgregor Co. v. Breibart

Decided: August 16, 1943.

DAVID MACGREGOR COMPANY, PLAINTIFF-RESPONDENT,
v.
SANDOR BREIBART ET AL., TRADING, ETC., DEFENDANTS-APPELLANTS



On appeal from a judgment of the Second District Court of Paterson.

For the appellants, Nicholas O. Beery.

For the respondent, I. Arthur Weiss.

Before Justices Case, Donges and Porter.

Donges

The opinion of the court was delivered by

DONGES, J. This appeal from a judgment for plaintiff, entered in the Second District Court of the City of Paterson, raises a simple question, namely, whether there was any evidence to sustain the judgment for plaintiff.

The state of case does not conform to the statute, R.S. 2:32-209, or rules of this court, R.S. 2:32-211, Supreme Court Rule No. 156. It contains matter that is not part of the record.

The suit was for the amount alleged to be due as premiums for insurance, issued by plaintiff as authorized agent of certain insurance companies and for an audit of defendants' records in connection with the employees' compensation insurance policy issued to defendants. The premiums were for the time the policies were in force, they having been cancelled on or about June 4th, 1942, about four months after issuance.

The plaintiff's testimony showed that policies were issued on application of Mr. J. T. Lieblich in 1941; that Mr. Lieblich requested plaintiff, in January, 1942, to renew the policies; that the policies were issued and sent, as theretofore, to Mr. Lieblich; that thereafter an audit was made of defendant's records; that plaintiff submitted bills for the amount alleged to be due on the policies, but no payment was received; that, on or about June 4th, 1942, plaintiff's secretary was advised by Mr. Lieblich that defendants had not paid the premiums, although he had attempted to collect same, and that plaintiff should attempt to make such collection; that the policies were canceled on or about June 4th, 1942; that defendants were given credit for unearned premiums and that

the sum of $31.08 was due for the period the policies covered defendants.

Defendants' only witness was Mr. Lieblich, who testified that he had ordered the policies in 1941; that, in January, 1942, he advised plaintiff not to issue renewals; he denied any conversation with plaintiff's officer respecting cancellation of the policies or that he had advised collection directly from defendants; he testified that he had received the renewal policies and held them for several months, when they were returned to plaintiff; that he was ...


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