Carton v. Booze

68 N.J. Eq. 771 | N.J. | 1905

Dissenting Opinion

Fort, J.

(dissenting).

In this ease I vote to reverse, not because the vice-chancellor has allowed the defendant too much in the decree below, but because he has not allowed her the entire claim which she made by her answer.

The evidence of the defendant and her witnesses was unimpeached, and I am unable to see why they should be discredited. To me there is nothing unreasonable or improbable in the story the defendant tells; when you take into account, the circumstances surrounding the alleged gift by her father and her loan to her brother.

I think, under the proof, a decree in accordance with her claim should have been made.

The decree below only allows her some $1,300 of the $4,800 of money due her and secured by the deed which the complainant’s bill seeks to avoid. I think the deed should have been allowed to stand as security for the whole amount claimed by the defendant.

For affirmance—The Chief-Justice, Garrison, Garretson, Pitney, Swayze, Bogert, Vredenburgh, Green, Gray—9. For reversal—Dixon, Fort—2.

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Lead Opinion

Per Curiam.

The decree appealed from will be affirmed, for the reasons set forth in the opinion filed in the court of chancery by Yice-Chancello-r Eeed.