Dorfman v. Mt. Sinai Building & Loan Ass'n , 11 N.J. Misc. 429 ( 1933 )

Per Curiam.

This ease presents an appeal by the defendant-appellant from a judgment recovered by the plaintiff below in the sum of $140.

The plaintiff, a shareholder in the defendant building and loan association, sued to recover this amount of $140 which she alleges was paid by her over and above the amount due to the building and loan association on a mortgage loan. It is not disputed that this amount was paid by the plaintiff but the defendant says this sum was applied by it to unpaid insurance premiums covering the plaintiff’s property. On the other hand, the husband of the plaintiff swears that he paid the insurance premiums, amounting to $140, to the president of the building and loan association which, of course, presents a fact issue.

The state of the case, agreed upon by counsel for the respective parties, comes before us in a very unsatisfactory condition. The parties, for instance, are unable to agree as to whether or not a certain question was asked (which may have been important in this controversy) and the notes of the trial judge do not disclose whether or not the question was asked. It does appear, however, that the defendant moved for a non-suit, which was denied, and that the court let the case go to the jury as to whether or not the president of the defendant building and loan association acted as the plaintiff’s agent o-r the defendant’s agent in applying plaintiff’s moneys- to the payment of insurance premium. The court’s ruling on these questions was in no- way excepted to and these questions therefore are not available to the appellant for the purposes of an appeal. Klein v. Shryer, 106 N. J. L. 433; 150 Atl. Rep. 321.

The appeal is therefore dismissed, with costs.