Opinion
Submitted February 24, 1936 —
Decided May 14, 1936.
On appeal from a judgment of the Supreme Court, wherein the opinion by Mr. Justice Perskie is printed in 13 N.J. Mis. R. 845.
For the respondent, M. Metz David Cohn and Milton Goldinger.
For the appellant, Cox Walburg ( Harry E. Walburg).
The judgment in the Supreme Court should be affirmed, for the reasons stated in the opinion there filed, with this added observation: The knowledge on the part of the insurer that the employe was illegally employed appears on the record in the first defense interposed within the answer to the complaint, wherein it is set up that the insurer undertook to defend the employer in the action brought by the under-age employe with the understanding that if any judgment were recovered in that action, no part of it would be paid by the insurer "for the reason that the policy of insurance issued by the said Aetna Life Insurance Company to the said Paterson Batten and Loom Builders, Incorporated, did not provide coverage for any injury sustained by any employe of the said Paterson Batten and Loom Builders, Incorporated, while illegally employed or while employed in violation of the statutes of the State of New Jersey." The insurer did not undertake at the trial to prove such an agreement but nevertheless the admission of knowledge implicit in the answer may properly count against the party pleading the same.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, LLOYD, CASE, BODINE, DONGES, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 11.
For reversal — None.