Opinion
Submitted October term, 1942.
Decided January 29th, 1943.
On appeal from a decree of the Court of Chancery advised by Vice-Chancellor Egan, whose opinion is reported in 131 N.J. Eq. 380.
Mr. Julius Lichtenstein, for the complainant-appellant.
Mr. A. Harry Moore, Mr. Thomas E. Lynch, Mr. Frederick E. Reithmuller, Messrs. Meehan Brothers, Mr. George R. Milstein and Mr. Clarence F. McGovern, for the defendants-respondents.
The decree dismissing the bill of complaint, is affirmed, on the opinion below, with the following reservations:
First — We find no allegation in the complaint to support the statement contained in the opinion of the learned Vice-Chancellor that on November 10th, 1939, or at any time, the complainant instituted an action at law against the defendant Bergen Trust Company in the New Jersey Supreme Court, Hudson County, or elsewhere, for arrears of rent for the premises, which complainant alleged the Trust Company assumed to pay. This inaccuracy, however, does not affect the determination of the issue involved.
Second — Reference is also made by the Vice-Chancellor in his opinion to and citations from cases, bearing upon the contention of complainant that the transfer of the assets to the Trust Company made the Savings Bank insolvent and the defendant's reply that if the Savings Bank became insolvent because of the transfer of its assets, then the complainant was not a creditor within the meaning of the law, and that her claim under the lease thereby became contingent; and that in insolvency proceedings equity would be powerless to grant relief for future rent. The Vice-Chancellor continues to set forth the defendants' argument to the effect that the Savings Bank up to the time of the transfer of its assets to the Trust Company had discharged all of its obligations under the lease, and under these circumstances, since the complainant was not a creditor under the law, the board of managers, as trustees of the assets of the Savings Bank, were not guilty of any breach of duty to the complainant and are not, therefore, liable jointly and severally. We do not think that a determination of this point was necessary for the disposition of the case, and we pass over that question here, neither approving nor disapproving of any application to the instant case the court below may have intended to make by citing cases on this point.
Subject to these reservations, the decree is affirmed, for the reasons expressed in the opinion of the learned Vice-Chancellor.
For affirmance — THE CHIEF-JUSTICE, PARKER, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, JJ. 12.
For reversal — CASE, J. 1.