On appeal from the Superior Court, Law Division, Essex County.
For dismissal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld and Burling. For affirmance -- Justices Jacobs and Brennan. The opinion of the court was delivered by Oliphant, J.
[19 NJ Page 25] This is an appeal from a judgment of "no cause of action" entered by direction of the trial judge in
the Superior Court, Law Division, Essex County, in favor of the defendant and against the appellant. It is a companion appeal to the appeal disposed of by this court in Mortgage Corporation of New Jersey v. Aetna Casualty & Surety Co., 19 N.J. 30 (1955). While the appeal was pending in the Appellate Division we certified it on our own motion.
This appeal relates to the cause of action in the second count of the complaint filed by the plaintiff against the defendant to recover on an indemnity policy. The complaint consisted of two causes of action, the first count based upon the delinquency or failure of duty of an employee of the plaintiff, one Harrison, and the second count was based upon alleged delinquencies and failure of duty of one Stoldt, who is alleged to be the attorney for the plaintiff in certain transactions. The rights and liabilities as to the first count were settled by the opinion of this court in Mortgage Corporation of New Jersey v. Aetna Casualty & Surety Co., supra, and a judgment in favor of the plaintiff was ordered to be entered.
The case was originally tried before Judge Ewart on January 18 to 22, 1954. The statement of verdict filed pursuant to R.R. 4:59 states:
"The court on motion of attorney for defendant ordered judgment in favor of the defendant as to the 2nd count of the complaint, whereupon the trial continued as to the 1st count only.
The cause having been heard and submitted to the jury, they returned their verdict as follows:
They find No Cause for action in favor of the defendant on the complaint of the plaintiff."
In accordance with this statement of verdict the clerk, on January 29, 1954, entered a final judgment which adjudicated all claims as to all parties set forth in the complaint.
On February 5, 1954 plaintiff-appellant made a motion for entry of judgment in its favor on the first count "notwithstanding the verdict of the jury" and in the alternative to set aside the verdict of the jury on the first count and to grant a new trial as to this count. Also incorporated in
this motion was a second motion to set aside the verdict in favor of the defendant on the second count, the cause here under consideration, and to grant a new trial on the ground that a jury question was raised as to the employment of one ...