Giordano v. Asbury Park Ocean Grove Bank , 135 N.J. Eq. 511 ( 1944 )

In 1921, the complainant sold some machinery and received a note in payment which he discounted at the Asbury Park and Ocean Grove Bank. The note not being paid, the bank sued the maker and received a collateral mortgage from the complainant, who was the endorser, which it did not record. He thereafter encumbered the property on which the bank's mortgage was placed with several other mortgages. Finally, the bank sued on the note and levied on other properties owned by the complainant. The properties so levied upon were subsequently sold to third parties.

Complaint is made that the price was inadequate and that there was a conspiracy to defraud. The learned Vice-Chancellor found otherwise, and we think rightly. The complainant was afforded every opportunity to recover the property in question if he would pay what was due and owing to the bank. This he failed to do. The bank, before the sale of the properties in question, incurred considerable expense in paying prior mortgages, in making repairs and paying taxes.

The final decree was entered January 8th, 1931. The notice of appeal was filed October 7th, 1931. The petition of appeal was not filed until October 27th, 1941. The motion to dismiss the appeal for want of prosecution was held to the end that it could be considered when the case was before us.

Obviously, there was no diligence in the prosecution of the appeal and it should have been dismissed. Since we have examined the case and find no merit in the appeal, the decree will be affirmed, with costs to the respondent.

For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, DILL, JJ. 14.

For reversal — None.