348 Bloomfield Avenue Corp. v. Montclair Mfg. Co., Civ. No. 131-50.
| Decision Date | 21 June 1950 |
| Docket Number | Civ. No. 131-50. |
| Citation | 90 F. Supp. 1020 |
| Parties | 348 BLOOMFIELD AVENUE CORP. v. MONTCLAIR MFG. CO., Inc. |
| Court | U.S. District Court — District of New Jersey |
Plaintiff, as assignee, brings this action to recover for breach of a lease of premises located in Montclair, N. J. Defendant, by this motion, raises the defense of res judicata, alleging that a judgment of the Essex County Court bars this action, and further contends that the action is barred by a statute of New Jersey which provides as follows: "Until such corporation so transacting business in this state shall have obtained such certificate of the secretary of state, it shall not maintain any action in this state upon any contract made by it in this state." N.J.S.A. 14:15-4.
Both parties have filed affidavits which show the following facts. A lease was entered into between the Danlow Realty Co. and defendant in September of 1946. The Danlow Realty Co. is a corporation of the State of New York and has never received authorization to do business in the State of New Jersey. The lease was subsequently assigned by Danlow Realty Co. to the plaintiff, also a New York corporation, which has not been authorized to transact business in the State of New Jersey. Attached to defendant's notice of motion is a certified copy of an order of the Essex County Court striking the complaint on the ground that the suit was based upon a lease entered into in the State of New Jersey by a New York corporation without authority to do business in New Jersey. The order further recites that it is without prejudice to the right of the plaintiff to proceed in another forum. From the affidavits it further appears that the issues involved in the action in the Essex County Court were the same as are involved in this action. It must have been decided then that the statute barred plaintiff's action. Plaintiff questions the propriety of raising the defense of res judicata by a motion of this type and contends that the statute referred to above has no application to the facts in the case at bar.
Ordinarily the defense of res judicata is pleaded as an affirmative defense under the Federal Rules of Civil Procedure, 28 U.S.C.A. However, where the substantive rights of the parties are not endangered, the manner of raising the defense is unimportant. Motions of a similar nature have been treated as answers and as motions for summary judgment. In Hartmann v. Time, Inc., 3 Cir., 1947, 166 F.2d 127, 1 A.L.R.2d 370, certiorari denied 334 U.S. 838, 68 S.Ct. 1495, 92 L.Ed. 1763, on motion for summary judgment defendant filed an affidavit setting up pleadings and judgments in suits...
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...rights of the parties are not endangered, the manner of raising the defense is unimportant." Bloomfield Avenue Corp. v. Montclair Mfg. Co., 90 F.Supp. 1020, 1021 (D.N.J.1950); United States v. Alaska, 197 F.Supp. 834, 836 (D.Alaska 1961). Where the usual motions are inappropriate vehicles f......
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