Antell, J.s.c. (temporarily assigned).
On these cross-motions for summary judgment the following undisputed material facts appear.
On June 17, 1960 the Totowa Savings and Loan Association was robbed of $7,323, for which defendant was indicted by a federal grand jury on February 14, 1961. On March 2, 1961 he pleaded guilty to the indictment and on March 23, 1961 was sentenced in the United States District Court for the District of New Jersey to a term of eight years imprisonment. During the period between April 5, 1961 and December 5, 1964 he was confined at the Federal Correctional Institution in Lewisberg, Pennsylvania.
On February 24, 1964 counsel for plaintiff, Totowa's subrogee, wrote defendant that plaintiff would look to him for redress. The full text of this letter, which defendant referred to his attorney, as well as the entire ensuing correspondence between counsel, follows:
We represent the Fidelity and Deposit Company of Maryland, which company insured the Totowa Savings and Loan Association against the loss sustained by the said Totowa Savings and Loan Association from the robbery, which occurred on June 17, 1960. We are advised that you and others were responsible for this loss. Our client has placed this matter in our hands for the purpose of recovering its loss, and it looks to you and the other responsible parties for reimbursement.
We are writing you in order to give you the opportunity to adjust this claim without suit if you so desire. We will expect to hear from you within 10 days of the date of letter; and if we do not hear from you, we will proceed accordingly.
Your letter to Mr. Emil Abagnale has been referred to me for attention. Emil is still confined to the Federal Penitentiary and at this time, no date has been fixed for his release. I can only state that as far as I know, Emil Abagnale is without funds of any kind and so obtaining reimbursement from him will be somewhat of a problem. Don't you agree?
Our investigation has revealed that Mr. Abagnale had substantial equity in realty located at No. 242 Riverview Avenue, North Arlington, prior to his conviction. Furthermore, it is our understanding that this property was subsequently transferred without consideration to a relative. It is our intention to seek judgment and an Order setting aside this conveyance.
After you have had an opportunity to discuss this with your client or his representative, please advise us if you will continue to serve as counsel in the civil proceeding so that we may make proper service.