N.J. Constitutional Convention: Vol. 4, Page 361

Wednesday, July 9, 1947 (Morning session)

sets of lawyers were involved. Every one of the cases was separately litigated. Every one of those cases was separately appealed to the Court of Errors and Appeals; every one of those cases was separately thrown out by the Court of Errors and Appeals, on the ground that the case did not belong in the Court of Chancery but should have been tried at law.

Shortly after those four cases were thrown out, the Court of Errors and Appeals decided the case of Richeimer v Fischbein, in 107 N. J. Eq. 493. Now, all of those cases involved situations where the prospective purchaser of real estate had paid a deposit on a contract to buy real estate, and the seller having failed to perform the contract, the buyer sought to impress a lien on the real estate for the return of the deposit.

In Richeimer v Fischbein, the Vice-Chancellor felt that on the basis of the four previous cases I have mentioned, he was compelled to dismiss Richeimer's bill to impress his lien. The Court of Errors and Appeals reversed, on the ground that there was certain language in the pleadings in the Richeimer case which did not appear in the other four cases. In other words, because of some slight difference in the language of the pleadings the four cases which had been tried and decided on the merits and appealed to the Court of Errors and Appeals, had all been thrown out, with instructions to start all over again. Incidentally, I might point out that the difference in the pleadings in those five cases was so slight that an article in the Mercer Beasley Law Review denied, after comparison of the pleadings in all these cases, that there was a difference, but there you have it.

Nazzaro v Globe & Republic Insurance Company, 127 N. J. Eq. 297, was a case involving a suit over a $1,500 fire insurance policy. The Nazzaro case came up for trial in June 1937, and just before the trial Nazzaro's attorneys discovered that there were certain elements in the case that Nazzaro might not be able to prove at law. Nazzaro then had to go into equity to enjoin the company from raising certain defenses, and he won in equity. The insurance company took an appeal to the Court of Errors and Appeals, and the Court of Errors and Appeals affirmed on April 25, 1940. All that was decided by that affirmance after three years of litigation, a hearing before a Vice-Chancellor and an appeal to the Court of Errors and Appeals, was that the insurance company should be enjoined from setting up certain defenses at law. As to the rest of it, as to collecting his $1,500, Nazzaro was told he would have to go back to the law courts.

I might point out at this point, that situations like this and the previous cases that I mentioned, and the cases that I will mention subsequently, could not happen in an integrated court.

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