Ciocca v. Hacker.

Decision Date02 June 1949
Docket NumberNo. A-283.,A-283.
Citation66 A.2d 451
PartiesCIOCCA v. HACKER.
CourtNew Jersey Superior Court

OPINION TEXT STARTS HERE

Appeal from Bergen County Court.

Action by Joseph Ciocca against Ralph Hacker for libel, wherein Ralph E. Hacker and Glenn A. Hacker, trading as Hacker & Hacker, filed a counterclaim for damages. From an order dismissing the counterclaim, the defendant appeals.

Reversed, and matter remanded.

Before JACOBS, Senior Judge, and EASTWOOD and BIGELOW, JJ.

Edward A. Markley, Jersey City, argued the cause for the defendant-appellant (Markley & Broadhurst, Jersey City, Attorneys).

William V. Breslin, Englewood, argued the cause for the plaintiff-respondent

JACOBS, Senior Judge.

This is an appeal from an order entered in the Bergen County Court on the 1st day of February, 1949, which provided ‘that the counterclaim filed in the above entitled action by Hacker & Hacker be and is hereby dismissed.’

In February, 1947, the plaintiff, Joseph Ciocca, a member of the Board of Education of the Borough of Fort Lee, filed a complaint for libel against the defendant Ralph E. Hacker, a member of Hacker & Hacker, architects. In September, 1947, a voluminous answer by the defendant Ralph E. Hacker was filed. The answer also embodied a counterclaim by defendant Ralph E. Hacker and Glenn A. Hacker, trading as Hacker & Hacker, who ‘individually and jointly’ alleged that they had entered into a contract with the Board of Education of the Borough of Fort Lee designating them as school architects and that the plaintiff had maliciously interfered with their contractual relations. The specific acts of the plaintiff which are alleged to have constituted the malicious interference are set forth in twenty-two subparagraphs of paragraph three of the counterclaim which concludes with a demand for damages in the sum of $5,000.00 against the plaintiff.

On November 7, 1947, the plaintiff filed a notice of motion to strike the counterclaim on the ground, among others, that there had been a misjoinder of parties in that ‘the partnership of Hacker & Hacker filed this counterclaim wherein the defendant was Ralph Hacker, individually’. Briefs were evidently filed and the matter was submitted to the County Court for its determination. At the time the motion was made the alleged cause of action in the counterclaim had admittedly not been barred by the statute of limitations; at the argument on the appeal both counsel expressed agreement that the time for instituting a new action is now barred and presumably was barred by December 22, 1948, when the County Court rendered its opinion that the counterclaim be stricken, and on that basis we shall so assume. The County Court stated that it considered all points abandoned by the plaintiff except those advanced in his brief, namely, (1) that the counterclaim could not be filed by the defendant and a third party who was not a party to the original action, and (2) that the counterclaim could not be conveniently tried with the plaintiff's cause of action. The County Court found both of these contentions to be sound, granted the plaintiff's motion and entered an order which, though inappropriately worded, was evidently intended as a judgment striking the entire counterclaim.

It is conceded that under the former practice a new party to a proceeding could not be joined by simply including him as a counterclaimant, as was done here. See Ruchlin v. A.G. Motor Sales Corp., 127 N.J.L. 378, 22 A.2d 767 (Sup.Ct. 1941). Although the new Rules liberally recognize that legal procedure is not an end, but merely a means for the proper administration and effectuation of justice, they, in turn, prescribe orderly, though simple, procedural steps, calculated towards that goal. Thus, Rule 3:13, in comprehensive terms, allows the filing of a counterclaim ‘against an opposing party but its language clearly assumes that the...

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21 cases
  • Jersey City v. Hague
    • United States
    • New Jersey Supreme Court
    • June 13, 1955
    ...relief by judgment of dismissal resting on the absence of merit rather than upon procedural deficiency. Cf. Ciocca v. Hacker, 4 N.J.Super. 28, 33, 66 A.2d 451, 453 (App.Div.1949), where the court rightly referred to the general policy against procedural frustrations of determinations on the......
  • Bergen County v. Port of New York Authority
    • United States
    • New Jersey Supreme Court
    • May 9, 1960
    ...17 N.J.Super. 20, 21, 85 A.2d 304, 305 (App.Div.1951), certification denied 9 N.J. 287, 88 A.2d 39 (1952); Ciocca v. Hacker, 4 N.J.Super. 28, 33, 66 A.2d 451 (App.Div.1949). They zealously set about their task and in 1951 Professor Schnitzer was able to record that 'almost every reported ca......
  • Mayflower Industries v. Thor Corp.
    • United States
    • New Jersey Superior Court
    • August 10, 1951
    ...such a counterclaim would be allowed, but trial thereon withheld pending the disposition of the original action. Ciocca v. Hacker, 4 N.J.Super. 28, 66 A.2d 451 (App.Div.1949); Shapiro v. Rice, 5 N.J.Super. 133, 68 A.2d 563 (App.Div.1949). However, that problem need not be determined for rea......
  • Korff v. G & G Corp.
    • United States
    • New Jersey Supreme Court
    • May 28, 1956
    ...parties might properly be permitted to intervene or be added as defendants (R.R. 4:13; R.R. 4:14; R.R. 4:37; Ciocca v. Hacker, 4 N.J.Super. 28, 32, 66 A.2d 451 (App.Div.1949)) and that once they became parties they might file cross-claims and counterclaims. In 4 Moore's Federal Practice (2d......
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