Union County Bldg. & Loan Ass'n v. Weltchek

• Decision Date: 28 November 1934
• Citation: 175 A. 625
• Parties: UNION COUNTY BUILDING & LOAN ASS'N v. WELTCHEK et al.
• Court: New Jersey Court of Common Pleas

175 A. 625

UNION COUNTY BUILDING & LOAN ASS'N

v. WELTCHEK et al.

Court of Common Pleas of New Jersey, Union County.

Nov. 28, 1934.

Action by the Union County Building & Loan Association, a corporation of the state of New Jersey, against Lawrence L. Weltchek and another. On motion to strike the complaint.

Motion granted.

Robert H. McAdams, of Elizabeth, for plaintiff.

Harry Weltchek and Emanuel Wagner, both of Elizabeth, for defendants.

EDWARD A. McGRATH, Judge.

The plaintiff's complaint alleges that the defendants mortgaged certain properties to the plaintiff on January 21, 1929; that there was a default and the property was sold on June 21, 1933, under foreclosure. Suit is for a deficiency, and the complaint recites that on October 20, 1933, a notice of the proposed suit was properly filed and that the suit was commenced within six months of the date of the sale.

Defendants move to strike out the complaint on the ground that suit was not commenced within three months of the date of sale, as provided in chapter 82 of the Laws of 1933 (N. J. St. Annual, 1933, § 134—48). The plaintiff contends that the Laws of 1933, c. 82, changing the period of limitations from six months to three months, is unconstitutional and that the suit is governed by the prior statute of 1881 (3 Comp. St. 1910, p. 3421, § 48, as amended by P. L. 1932, p. 509. § 1 (N. J. St. Annual 1932, § 134—48), giving the plaintiff six months in which to sue.

It is well settled that the obligation of a contract is not impaired by a law which changes the legal or equitable means for its enforcement existing at the time it was entered into, provided an adequate though per haps not so convenient remedy is retained or substituted therefor. "Although a new remedy may be deemed less convenient than the old one, and may in some degree render the recovery of debts more tardy and difficult, yet it will not follow that the law is unconstitutional. Whatever belongs merely to the remedy may be altered according to the will of the state, provided the alteration does no: impair the obligation of the contract." Bronson v. Kinzie, 1 How. 311, 316, 11 L. Ed. 143. Thus in Wheeler v. Jackson, 137 U. S. 245, 11 S. Ct. 76, 34 L. Ed. 659, a statute shortening the period of limitation for bringing an action, but not reducing it to an unreasonably short period, was sustained; and in New Jersey our Court of Appeals has held that the Legislature may pass statutes of limitation which shall apply to existing contracts, provided a reasonable time in which to bring suit is allowed. Barnaby v. Bradley & Currier Co., 60 N. J. Law, 158, 37 A. 764; Wootton v. Pollock, 116 N. J. Eq. 490, 174 A. 497. In all such cases the question is one of reasonableness and as to that the Legislature is primarily the judge; and in judging the reasonableness of the limitation the court must consider the circumstances and cannot overrule the judgment of the Legislature unless a palpable error has been committed. Terry v. Anderson, 95 U. S. 632, 24 L. Ed. 365. In Wootton v. Pollock the court held the change not unreasonable as applied to a suit in equity; and nothing has been shown which...