Tsibikas v. Morrof.

• Decision Date: 02 November 1949
• Docket Number: No. A-486.,A-486.
• Citation: 68 A.2d 889
• Parties: TSIBIKAS v. MORROF.
• Court: New Jersey Superior Court

68 A.2d 889

TSIBIKAS

v.MORROF.

No. A-486.

Superior Court of New JerseyAppellate Division.

Argued Oct. 17, 1949.

Decided Nov. 2, 1949.

Action by Astor Tsibikas against Maximilian Morrof for the return of certain moneys allegedly held by defendant in escrow and for damages for defendant's alleged failure to perform certain services. The defendant counterclaimed for reasonable value of services rendered by him and for additional professional services rendered on an alleged agreement.

The Hudson County Court, Law Division, dismissed the counterclaim and ordered that the dismissal should operate as an adjudication on the merits and the defendant appealed.

The Superior Court, Appellate Division, Donges, J.A.D., held that the dismissal was not justified in view of the remedies available to plaintiff for obtaining further particulars from defendant and even if justified, dismissal should have been without prejudice and reversed the order.

Before Judges JACOBS, DONGES and BIGELOW.

Emil W. A. Schumann, Jersey City, argued the cause for plaintiff-respondent (Firovanti O. Miniutti, Jersey City, on the brief).

John Warren, Jersey City, argued the cause for defendant-appellant.

The opinion of the court was delivered by

DONGES, J.A.D.

This is an appeal from an order made May 27, 1949, by the Hudson County Court, Law Division, dismissing the counterclaim filed by the defendant and ordering that the dismissal shall operate as an adjudication on the merits. The ground recited for this action was failure of defendant to furnish a more specific bill of particulars.

Plaintiff commenced an action against the defendant in the former Hudson County Court of Common Pleas for the return of certain monies, which defendant is alleged to have held in escrow, and also for damages allegedly sustained by plaintiff because of defendant's alleged failure to perform certain services which he, as an attorney, agreed to perform.

The defendant filed an answer and counterclaim. His counterclaim was based (1) upon a claim for the reasonable value of services rendered by defendant to plaintiff, and (2) upon an alleged agreement by plaintiff to pay defendant for additional professional services rendered.

On February 13, 1948, plaintiff served defendant with a demand for a bill of particulars. On May 10, 1948, plaintiff served on defendant a notice of motion for an order requiring defendant to furnish the bill of particulars, and for an order barring defendant from all claims under the counterclaim in default thereof. The return date of said motion was postponed until June 4, 1948.

On June 3, 1948, however, defendant served plaintiff with a bill of particulars. On June 8th, defendant by written stipulation agreed to furnish a more specific bill of particulars. When this was not furnished, plaintiff made another motion to strike the counterclaim. The court below at first granted the motion and ordered the counterclaim stricken, but later modified the order by allowing seven days for the filing of supplemental particulars.

Thereafter, defendant filed the additional particulars, which both plaintiff and the court below felt were insufficient. After argument, the court below rendered a written opinion granting the motion to strike the counterclaim and ordering that the dismissal shall operate as an adjudiction on the merits. It is from this order, dated May 27, 1949, that defendant appeals.

Although defendant's conduct persuaded the judge below that he was guilty of ‘deliberate evasion or downright refusal’, as stated in his opinion, we feel that the order striking the defendant's counterclaim for failure of defendant to furnish plaintiff with adequate particulars was not warranted, in view of plaintiff's remedies.

It cannot be doubted that the new rules of Civil Practice are applicable...