Treacy v. Vigersky

Supreme Court of New Jersey

Treacy v. Vigersky

159 A. 312, 10 N.J. Misc. 410, 1932 N.J. Sup. Ct. LEXIS 225

CourtSupreme Court of New Jersey

DecidedMarch 18, 1932

StatusPublished

Cited by2 cases

This text of 159 A. 312 (Treacy v. Vigersky) 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

Treacy v. Vigersky, 159 A. 312, 10 N.J. Misc. 410, 1932 N.J. Sup. Ct. LEXIS 225 (N.J. 1932).

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Opinion

Ackekson, S. C. C.

This action is upon a promissory note alleged to have been made by the defendant to the order [411]*411of the Jewett Eealty Corporation, of which company the plaintiff is receiver.

The matter now comes before me upon a motion to strike the answer, consisting principally of four separate defenses, upon the grounds that the third separate defense is frivolous, and that the balance of the answer and defenses are sham. As to the latter ground, it is sufficient to say that the defendant’s affidavit raises questions of fact which save the answer from being stricken out as sham.

"With respect to the third separate defense we find that it alleges in substance that the Jewett Eealty Corporation, the payee of said note, was engaged in the general business of loaning money and discounting mortgages, contrary to the “General Corporation act” (Eevision of Laws, 1896), under which said company was incorporated, and that the note in question was accepted and discounted by said corporation in pursuit of said prohibited business, contrary to the aforesaid statute, and is, therefore, illegal and unenforceable.

The “General Corporation act,” (Eevision of 1896), does not make a note, discounted by a corporation other than a bank, void, but only prohibits general corporations from engaging in the business of “discounting bills, notes or other evidences of debts,” &c. Since the transaction is not, therefore, void, it will not lie in the mouth of this defendant, who has obtained the consideration therefor, from the plaintiff, to urge such a defense. Campbell v. Perth Amboy Ship Building, 70 N. J. Eq. 40; Fritz v. Palmer, 132 U. S. 282; Earle v. American Sugar Refining Co., 74 N. J. Eq. 763. This defense is therefore frivolous and will be stricken out for that reason. The balance of the answer, however, must stand.

No costs will be allowed on this motion, and the case will be put in the commercial calendar for April, 1932. An order may be presented in accordance with the conclusion thus reached.

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Ackekson, S. C. C.

This action is upon a promissory note alleged to have been made by the defendant to the order [411]*411of the Jewett Eealty Corporation, of which company the plaintiff is receiver.

The matter now comes before me upon a motion to strike the answer, consisting principally of four separate defenses, upon the grounds that the third separate defense is frivolous, and that the balance of the answer and defenses are sham. As to the latter ground, it is sufficient to say that the defendant’s affidavit raises questions of fact which save the answer from being stricken out as sham.

"With respect to the third separate defense we find that it alleges in substance that the Jewett Eealty Corporation, the payee of said note, was engaged in the general business of loaning money and discounting mortgages, contrary to the “General Corporation act” (Eevision of Laws, 1896), under which said company was incorporated, and that the note in question was accepted and discounted by said corporation in pursuit of said prohibited business, contrary to the aforesaid statute, and is, therefore, illegal and unenforceable.

The “General Corporation act,” (Eevision of 1896), does not make a note, discounted by a corporation other than a bank, void, but only prohibits general corporations from engaging in the business of “discounting bills, notes or other evidences of debts,” &c. Since the transaction is not, therefore, void, it will not lie in the mouth of this defendant, who has obtained the consideration therefor, from the plaintiff, to urge such a defense. Campbell v. Perth Amboy Ship Building, 70 N. J. Eq. 40; Fritz v. Palmer, 132 U. S. 282; Earle v. American Sugar Refining Co., 74 N. J. Eq. 763. This defense is therefore frivolous and will be stricken out for that reason. The balance of the answer, however, must stand.

No costs will be allowed on this motion, and the case will be put in the commercial calendar for April, 1932. An order may be presented in accordance with the conclusion thus reached.

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Bluebook (online)

159 A. 312, 10 N.J. Misc. 410, 1932 N.J. Sup. Ct. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/treacy-v-vigersky-nj-1932.

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