Berges v. Russo. Same

• Decision Date: 25 August 1947
• Parties: BERGES v. RUSSO. SAME v. RUSSO et al.
• Court: New Jersey Circuit Court

54 A.2d 693

BERGES

v.RUSSO.

SAME

v.RUSSO et al.

Circuit Court of New Jersey, Atlantic County.

Aug. 25, 1947.

Suits in the district court by Louis Berges against Frank Russo to recover on notes wherein defendant filed a counterclaim, sued by the same plaintiff against Frank Russo and another for rent wherein defendants filed a counterclaim. On defendants' application for transfer of the causes to the circuit court.

Motion denied.

Irving I. Jacobs, of Atlantic City, for plaintiff.

Cassman & Gottlieb, of Atlantic City, for defendants.

HAYDN PROCTOR, Circuit Court Judge.

This is an application for the transfer of two District Court causes to the Circuit Court, upon the ground that defendants have filed counterclaims in each suit for sums in excess of the jurisdiction of the District Court.

The plaintiff in the above entitled causes has commenced two separate suits in the Atlantic City District Court. The first suit is based on a series of notes totalling $208.30, alleged to have been executed by the defendant Frank Russo. The second and subsequent suit is for nine months' arrearages in rent against the said Frank Russo and Harriet Russo, his wife, aggregating $292.50.

In the first suit, Frank Russo filed an answer and counterclaim, contending that the aforesaid notes were five of a series of twelve notes of $41.66 each, which were illegal, in that they represented payment of rent in excess of the ceiling established by the Office of Price Administration under the Federal Emergency Control Act. In the counterclaim, defendant, Frank Russo, alleged that the notes were illegal and void under the Federal Price Control Act, Title 50, U.S.C.A.Appendix, § 901 et seq., and that he was entitled to triple damages amounting to $749.88 for money paid on other notes in the series.

In the second suit for rent a similar answer and counterclaim was filed by Frank Russo and Harriet Russo.

Subsequent to the filing of the answers and counterclaims, defendants gave notice of an application for the transfer of both causes to the Circuit Court, pursuant to R.S. 2:8-44, 45 N.J.S.A. 2:8-44, 45.

The said statute provides that ‘whenever, in any answer to any action brought in any district court of this state, the defendant shall file any * * * counterclaim, * * *, wherein it shall be made to appear that the amount claimed in such * * *, counterclaim, * * * shall exceed the sum or value limited for the jurisdiction of such court, such action, on application on behalf of the defendant, accompanied by an affidavit of such defendant or his duly authorized agent, that he verily believes that the amount of such claim, when established by proof, will be greater than the sum or value limited for the jurisdiction of such court, and that such * * *, counterclaim, * * * is filed in good faith and not for the purpose of delay, shall, upon order of the court, be transferred, with the record thereof and all papers filed in the case, for hearing and determination to the circuit court of the county in which such district court is situate; and the circuit court shall thereupon proceed therein as if the cause or matter had been originally commenced in that court * * *.'

The statute further provides that ‘No action shall be transferred to a circuit court * * *, unless the judge of the circuit court to which it is intended to transfer such action shall, upon due proof * * * make an order that he finds that there is reasonable cause to believe that the * * *, counterclaim or other defensive action is founded on fact, and that there is reasonable chance...