State v. Taylor

• Decision Date: 11 March 1889
• Citation: 51 N.J.L. 307,17 A. 291
• Parties: STATE (DE MOTT, Prosecutor) v. TAYLOR.
• Court: New Jersey Supreme Court

17 A. 291

51 N.J.L. 307

STATE (DE MOTT, Prosecutor)

v. TAYLOR.

Supreme Court of New Jersey.

March 11, 1889.

(Syllabus by the Court.)

Certiorari to the court of common pleas, Bergen county; VAN VALEN, ACKERSON, and GARRISON, Judges.

An action was commenced by William Taylor against Henry J. De Mott in the court for the trial of small causes. The summons in the cause was made returnable on December 3, 1887. On December 2, 1887, the following stipulation was signed by the respective parties: "To Justice Schor: It is hereby stipulated between the said plaintiff and the said defendant that this case stands adjourned to Friday, Dec. 16, 1887, at 2 P. M., at Justice Schor's office, in Leonia, and without prejudice to either party, WILLIAM TAYLOR, Plaintiff. HENRY J. DE MOTT, Defendant. Dated Dec. 87." Under date of December 16, 1887, Mr. H. J. De Mott wrote to the justice the following: "Mr. Taylor informed me this morning that he had seen you last evening, and had agreed to adjourn the trial till Thursday next, at 2 o'clock p. M., at H. Wert Hotel. I hope this is correct, and I do agree to it, and will do all in my power to be ready then." On December 22d, the day mentioned in the preceding letter as the day to which the parties had agreed to adjourn the cause, the parties met at the place named, and the defendant tendered a plea of set-off, which plea the justice refused to file. Judgment was entered against the defendant. An appeal was taken to the court of common pleas of Bergen county, and that court refused to permit the defendant to file or prove his set-off, and, without having regard to the existence of any set-off, entered judgment against the defendant. The latter judgment is brought up by this writ of certiorari.

Argued at December term, 1888, before SCUDDER and REED, JJ.

Peter W. Stagg, for plaintiff in certiorari. C. H. Voorhees, for defendant.

REED, J., (after stating the facts as above.) The reasons assigned for reversal are directed against the act of the court in refusing to recognize the plea of set-off which the defendant tendered and offered to prove. The refusal of the court to permit the set-off to be pleaded or proven was induced by the language of the small cause act as contained in section 23, p. 544, of the Revision. This language is as follows: "If the defendant have any account or demand against the plaintiff, he shall be permitted to discount or Bet-off the same against the account, debt, or demand of such plaintiff; but such copy of his or her account, or state of his or her demand intended to be set-off, shall be delivered to said justice on or before the day to which the hearing shall be first adjourned." As already appears from the statement of facts, the set-off was not delivered to the justice within the time mentioned in the statute, but was first tendered on the day to which the cause was adjourned for the second time. The counsel for the defendant below, however, contends that the stipulation entered...