Maplewood Bank & Trust Co. v. Carragher Const. Co.

• Decision Date: 15 February 1934
• Docket Number: No. 26.,26.
• Citation: 170 A. 832
• Parties: MAPLEWOOD BANK & TRUST CO. v. CARRAGHER CONST. CO. et al.
• Court: New Jersey Supreme Court

170 A. 832

MAPLEWOOD BANK & TRUST CO.

v. CARRAGHER CONST. CO. et al.

No. 26.

Supreme Court of New Jersey.

Feb. 15, 1934.

Appeal from Circuit Court, Essex County.

Action by the Maplewood Bank & Trust Company against the Carragher Construction Company and another. From an adverse judgment, defendants appeal.

Judgment set aside.

Argued before BROGAN, C. J., and TRENCHARD and HEHER, JJ.

Edwin G. Adams, of Newark, for appellants.

Smith & Slingerland, of Newark, for respondent.

PER CURIAM.

This is an appeal from the judgment of the Essex Circuit Court giving summary final judgment to plaintiff-respondent against defendants-appellants for $1,575 damages, entered upon an order for summary judgment, which order struck out the answers of both defendants and two of the three counterclaims filed by defendant Carragher Construction Company, and denied that part of the motion to strike out the third counterclaim of defendant corporation.

The complaint was based upon a promissory note dated September 1, 1932, payable one month after date, to "the Prospect Trust Company, a corporation of the State of New Jersey" for $1,575, made by defendant Carragher Construction Company, and indorsed by that company and defendant John J. Carragher. The complaint alleged, among other things, that on or about September 28, 1932, the Prospect Trust Company merged with the Maplewood Bank & Trust Company, and by virtue thereof that note became the property of the Maplewood Bank & Trust Company, the plaintiff-respondent; that on the due date of the note it was presented for payment "at the place where it was payable," but it was not paid. The answer of the corporation defendant, Carragher Construction Company, admitted the giving of the note to the Prospect Trust Company, and the indorsements thereon, but put plaintiff to its proof upon all the other allegations of the complaint. That defendant also filed three counterclaims. The answer of the defendant, John J. Carragher, admitted the making and indorsement of the note, and put the plaintiff to its proof upon all other allegations of the complaint. His answer also set out three separate defenses, each of them based upon the fact that the defendant Carragher Construction Company, the maker of the note, possessed three separate counterclaims against the plaintiff, and averred that, the corporation defendant not being liable to the plaintiff because of such counterclaims, the defendant John J. Carragher, as indorser, was not liable.

Plaintiff-respondent gave notice of a motion before the Circuit Court for an order to strike out the answers "on the grounds that the allegations contained therein are untrue in fact and sham, or that they are frivolous, argumentative and uncertain"; to strike out counts 1 and 2 of...