Pennsylvania Co. v. Marcus

Supreme Court of New Jersey

Pennsylvania Co. v. Marcus

95 A. 766, 88 N.J.L. 37, 3 Gummere 37, 1915 N.J. Sup. Ct. LEXIS 22

CourtSupreme Court of New Jersey

DecidedNovember 5, 1915

StatusPublished

Cited by1 cases

This text of 95 A. 766 (Pennsylvania Co. v. Marcus) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pennsylvania Co. v. Marcus, 95 A. 766, 88 N.J.L. 37, 3 Gummere 37, 1915 N.J. Sup. Ct. LEXIS 22 (N.J. 1915).

Pincite

Opinion

The opinion of the court was delivered by

Garrison, J.

This is a rule to show cause why a judgment by confession should not be set aside for failure to file the notice required by the supplement of May 28th, 1907 (Pamph. L., p. 563; Comp. Stat., p. 3423) to the act concerning proceedings on bonds and mortgages, &c., approved March 12th, 1880. The notice that was filed did not comply with this supplement in that it failed to set forth the court in which it was proposed to enter such judgment. This was fatal to the notice.

The reasoning of Mr. Justice Kalisch’s opinion in ISTew v. Roggee, filed since the argument of this rule and not yet [38]*38reported, makes this clear. That opinion also makes it clear that the supplement of 1907 places an additional burden upon the plaintiff in the enforcement of his bond and to that extent deprives him of the less burdensome remedy that existed for the enforcement of his contract at the time when it was made, which was in 1905, and hence prior to the date of the approval of the said supplement. The supplement of 1907 therefore did not affect the plaintiff’s remedy and hence no notice was necessary. Constitution of New Jersey, art. 4, sec. 7, ¶ 3; Bradley v. Lightcap, 195 U. S. 1; Walker v. Whitehead, 83 Id. 314; Wilkinson v. Rutherford, 49 N. J. L. 241; Morris v. Cotter, 46 Id. 260; Baldwin v. Flagg, 43 Id. 495; Rader v. Union, 36 Id. 273.

The rule to show cause is discharged.

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The opinion of the court was delivered by

Garrison, J.

This is a rule to show cause why a judgment by confession should not be set aside for failure to file the notice required by the supplement of May 28th, 1907 (Pamph. L., p. 563; Comp. Stat., p. 3423) to the act concerning proceedings on bonds and mortgages, &c., approved March 12th, 1880. The notice that was filed did not comply with this supplement in that it failed to set forth the court in which it was proposed to enter such judgment. This was fatal to the notice.

The reasoning of Mr. Justice Kalisch’s opinion in ISTew v. Roggee, filed since the argument of this rule and not yet [38]*38reported, makes this clear. That opinion also makes it clear that the supplement of 1907 places an additional burden upon the plaintiff in the enforcement of his bond and to that extent deprives him of the less burdensome remedy that existed for the enforcement of his contract at the time when it was made, which was in 1905, and hence prior to the date of the approval of the said supplement. The supplement of 1907 therefore did not affect the plaintiff’s remedy and hence no notice was necessary. Constitution of New Jersey, art. 4, sec. 7, ¶ 3; Bradley v. Lightcap, 195 U. S. 1; Walker v. Whitehead, 83 Id. 314; Wilkinson v. Rutherford, 49 N. J. L. 241; Morris v. Cotter, 46 Id. 260; Baldwin v. Flagg, 43 Id. 495; Rader v. Union, 36 Id. 273.

The rule to show cause is discharged.

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Bluebook (online)

95 A. 766, 88 N.J.L. 37, 3 Gummere 37, 1915 N.J. Sup. Ct. LEXIS 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-co-v-marcus-nj-1915.

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