Tumarkin v. Friedman

• Citation: 17 N.J.Super. 20,85 A.2d 304
• Decision Date: 21 December 1951
• Docket Number: No. A--531,A--531
• Parties: TUMARKIN v. FRIEDMAN et al.
• Court: New Jersey Superior Court – Appellate Division

Page 20

17 N.J.Super. 20

85 A.2d 304

TUMARKIN v. FRIEDMAN et al.

No. A--531.

Superior Court of New Jersey, Appellate Division.

Argued Dec. 10, 1951.

Decided Dec. 21, 1951.

Benjamin Gross, Jersey City, argued the cause for the appellant (Gross & Gross, Jersey City, attorneys).

Joseph J. Schotland, Newark, argued the cause for the respondent (Sandles & Sandles, Newark, attorneys).

Before Judges JACOBS, EASTWOOD and BIGELOW.

The opinion of the court was delivered by

JACOBS, S.J.A.D.

The delegates to the Constitutional Convention of 1947 completed their task with high hopes that the modern judicial structure which they erected, when implemented by appropriate court rules, would eliminate the jurisdictional disputes between Law and Chancery and the archaic procedural requirements which had so often frustrated just and expeditious determinations on the ultimate merits. In substantial measure their hopes are being rapidly fulfilled; sufficiently so that a recent survey of the New Jersey decisions could report that 'almost every reported case was decided on the merits.' Schnitzer, Civil Practice and Procedure, 6 Rutgers L.Rev. 351 (1951). However, instances still arise, as in the present case, where the only points presented to this court are jurisdictional and procedural issues which have no real relation to the substantive controversy which will require later determination. Pound, Some Principles of Procedural Reform, 4 Ill.L.Rev. 388 (1910).

The plaintiff Allan L. Tumarkin, an attorney at law, is president and treasurer of the defendant Manufacturers Cutter Corporation. He and his wife are the stockholders and, along with his secretary, the directors. By an instrument dated December 15, 1950 the defendant Adolph Friedman undertook to liquidate the corporation's machinery and equipment upon the terms therein set forth. The instrument contained a tender to the corporation by Friedman of a $7,500 deposit by check 'made payable to the order of Allan L. Tumarkin, your attorney' to be held in escrow. The corporation 'approved and accepted' the agreement on December 18, 1950 and the $7,500 deposit was delivered to Mr. Tumarkin. Thereafter the corporation sought to cancel the agreement but this was unacceptable to Friedman. In January, 1951 Friedman filed a complaint in the Law Division of the Essex County Court alleging the agreement, his performance of conditions precedent and the corporation's breach, and in effect sought recovery of damages for the breach from the corporation and return of the deposit from Tumarkin. On February 3, 1951 the corporation filed its answer and counterclaim which asserted various legal and equitable defenses, alleged that Friedman had breached the agreement and maliciously injured its business and that it was entitled to the deposit in partial satisfaction, and sought damages from Friedman aggregating $50,000.

Although Tumarkin admittedly had possession of the $7,500 deposit and was a party in the County Court proceeding, he took no action therein. He did not seek to deposit the fund with the County Court (Rule 3:67--1) nor did he seek any relief by way of answer and counterclaim. Cf. Const., art. VI, sec. IV, par. 5; Heuter v. Coastal Air Lines, Inc., 12 N.J.Super. 490, 494, 79 A.2d 880 (App.Div.1951). Instead, he filed an independent complaint under Rule 3:22 in the Superior Court, Chancery Division, seeking to have Friedman and the corporation interplead their claims to the $7,500 deposit. Tumarkin's deposition was then taken and was apparently used, without objection, on a motion by Friedman to strike the Chancery complaint. See East Newark Realty Corp. v. Dolan, 15 N.J.Super. 288, 294, 83 A.2d 346 (App.Div.1951). The motion was denied and on May 4, 1951 the Chancery Division entered judgment directing Friedman and the corporation to interplead, restraining the prosecution of the County Court action against Tumarkin, and awarding to him costs including a counsel fee to be paid out of the $7,500 fund. The present appeal to this court is by Friedman from this judgment.

The substantial controversy which will require ultimate determination on its merits is between Friedman and the corporation, with each alleging breach or wrongdoing by the other and claiming substantial damages; disposition of the $7,500 deposit held by Tumarkin would be an incidental part of its outcome. If Friedman's action had been instituted against the corporation and Tumarkin in the Law Division of the Superior Court rather than the County Court the entire matter would properly have been disposed of there without piecemeal litigation elsewhere (Const. art. VI, sec. III, par 4; Massari v. Einsiedler, 6 N.J. 303, 78 A.2d 572 (1951)); if Tumarkin despite his acknowledged relation to the corporation desired to avoid further participation individually he could have obtained leave to deposit the $7,500 in the Superior Court (Rule 3:67--1) and sought, in his answer and counterclaim, such legal or equitable relief as he considered necessary or appropriate under the circumstances. Rules 3:12, 3:13, 3:22. It would have been directly contrary to the philosophy underlying our Judicial Article and court rules to have approved application to the Chancery Division to entertain a portion of the larger controversy and restrain the proceeding in the Law Division of the Superior Court. Cf. Massari v. Einsiedler, supra; Pound, Organization of Courts, 254 (1940); see Rule 3:65--7.

Conceding the foregoing Tumarkin urges its inapplicability to the pending proceeding in the Law Division of the Essex County Court where, he contends, he could not receive the adequate relief by answer and counterclaim which would have been available to him in the Law Division of the Superior Court if the action had been instituted there. In view of the general flexibility of our judicial system and the actual interchange of County and Superior Court judges (art. XI, sec. IV, par. 5; N.J.S. 2A:3--7, N.J.S.A.) we consider the undesirability of the view thus advanced to be evident; we should be reluctant to reach it in the absence of compelling authority.

In creating the County Court and providing for its jurisdiction the framers of the Constitution sought to achieve several fairly clear objectives. Const. art. VI, sec. IV, Report of the Committee on the Judiciary, pp. 19, 20 (1947), reprinted in 2 Constitutional Convention of 1947, 1192 (1951). Until altered by law the County Court is to exercise the original jurisdiction exercised by the several courts which it has replaced; since none of those courts could exercise equitable jurisdiction which required the action of the Court of Chancery the County Court may not, in the absence of alteration by law, entertain an original complaint seeking the exercise of such jurisdiction. Miske v. Habay, 1 N.J. 368, 374, 63 A.2d 883 (1949). Where, however, a complaint within its jurisdiction is properly filed in the County Court, as in the instant matter, then the County Court 'subject to law, may grant legal and equitable relief so that all matters in controversy between the parties may be completely determined.' Art. VI, sec. IV, par. 5. In the language of the Convention's Judiciary Committee, under this provision and subject to law, 'cases properly brought in the County Courts will be completely determined by allowing equitable defenses and counterclaims.' See Report, supra; Heuter v. Coastal Air Lines, Inc., supra. See also 1 Constitutional Convention of 1947, 592 (1949).

The contention is advanced that under Winberry v. Salisbury, 5 N.J. 240, 74 A.2d 406, 409 (1950), certiorari denied 340 U.S. 877, 71 S.Ct. 123, 95 L.Ed. 638 (1950) the Supreme Court may, by a rule of practice, restrict the jurisdiction of the County Court to entertain equitable answers and...