Solomon v. Salins, 27.

• Decision Date: 08 December 1931
• Docket Number: No. 27.,27.
• Citation: 157 A. 383
• Parties: SOLOMON v. SALINS.
• Court: New Jersey Supreme Court

157 A. 383

SOLOMON

v. SALINS.

No. 27.

Supreme Court of New Jersey.

Dec. 8, 1931.

Appeal from Court of Common Pleas, Atlantic County.

Action by Jacob Solomon against Gilbert A. Salins, in which defendant filed counterclaim. From a summary judgment for plaintiff, defendant appeals.

Reversed.

Argued May term. 1931, before GUMMERE, C. J., and PARKER and CASE, JJ.

Paul M. Salsburg, of Atlantic City, for appellant.

Blumberg & Blumberg, of Atlantic City, for respondent.

GUMMERE, C. J.

This suit was brought by Solomon, the plaintiff, to recover from the defendant an alleged unpaid balance of moneys loaned to the latter by him. The defendant filed an answer to the complaint denying that any part of the moneys loaned by the plaintiff to him remained unpaid, and asserting that, on the contrary, all the moneys loaned to him had been repaid in full, with interest. He also filed a counterclaim, alleging that the defendant was indebted to him for merchandise sold by him to the plaintiff from time to time and not paid for by the latter. Upon the filing of the answer and counterclaim, the attorney of the plaintiff served notice upon the attorney of the defendant that he would move to strike out each of them and apply for a summary judgment upon the ground that the same were sham and frivolous and were filed solely for the purpose of delay. The matter came on to be heard in due course before the court of common pleas upon ex parte affidavits, and at the close of the hearing the court directed the answer and counterclaim to be struck out and summary judgment entered in favor of the plaintiff for the full amount of his claim. The defendant has appealed from the judgment entered in accordance with this direction.

An examination of the affidavits submitted on behalf of the respective parties on the hearing of the motion to strike out satisfies us that the court of common pleas committed error in striking out the answer and counterclaim and entering judgment in favor of the plaintiff, and, for this reason, the attorney for the defendant, at the hearing of the motion to strike out, produced an affidavit of the latter, in which he specifically stated that he had repaid the loans made to him by the plaintiff from time to time in full; that the last payment made by him was on October 6, 1930, the amount of the payment being $500, and that when it was made the plaintiff admitted that it satisfied in full the defendant's debt to him. He also stated in the affidavit...