N.J. Constitutional Convention: Vol. 4, Page 358
on a fire insurance policy. He sued at law and he won on the merits. The insurance company took an appeal to the Court of Errors and Appeals, and the Court of Errors and Appeals reversed the decision, (80 N. J. Law 441) on the ground that parol evidence had been received in law which should have been received only in the equity court. So the Court of Errors and Appeals reversed the judgment in favor of Mr. Kelsey, and Mr. Kelsey had to start all over again in the equity court. How he made out in the equity court does not appear in the reported cases.
In Metropolitan Life Insurance Company v Urback, Mrs. Urback was the beneficiary of a $2,500 life insurance policy on the life of her husband. Her husband died and in September 1938 she started suit at law on the policy. After the case was at issue at law and ready to be tried, in April 1939, some seven months later, the insurance company went into Chancery Court and asked that the policy be cancelled on grounds which were not cognizable at law. Mrs. Urback's attorney immediately made a motion to strike out the bill in the equity court, on the ground that the case was one that should stay at law, particularly in view of the fact that the case had already been started at law and was ready for trial. The Vice-Chancellor denied the motion to strike the bill and the case was appealed to the Court of Errors and Appeals. The Court of Errors and Appeals on April 25, 1940, 19 months after the original inception of the proceedings, handed down a decision (127 N. J. Eq. 253, at 254), in which they said this (reading):
"We conclude that the bill should be retained until a hearing is had and all the evidence presented and that the questions raised by reason of such motion to strike should not be determined until that time."
In other words, the court told Mrs. Urback for her $2,500 first to try the case on the merits, and then it would decide whether she was in the right court or not. Nineteen months of litigation and the courts could not make up their minds whether the case belonged at law or in equity.
Shortly after this decision of the Court of Errors and Appeals, the case came on for trial at law. It was tried for two days and there was a verdict for Mrs. Urback. The insurance company took an appeal to the Court of Errors and Appeals, and the Court of Errors and Appeals reversed because of an error that the trial judge had made in the charge to the jury, and sent the case back for a second trial at law. The case was tried a second time at law, and this time the judge who heard the case felt that he was compelled by the decision of the Court of Errors and Appeals to direct a verdict against Mrs. Urback, which he did. Mrs. Urback then appealed to the Court of Errors and Appeals, which again reversed and sent the case back for a third trial at law. The case was tried the third
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