On appeal from the Supreme Court.
For the appellant, Israel B. Greene.
For the respondent, McDermott, Enright & Carpenter.
The opinion of the court was delivered by
CAMPBELL, J. This is an appeal from a summary judgment in favor of plaintiff-respondent upon the striking out, upon notice, of a counter-claim as sham and frivolous.
The appeal also purports to be from an order confirming a referee's report.
This latter is not the subject of an appeal. As was said in Consolidated Electric Lamp Co. v. Lux Manufacturing Co.,
94 N.J.L. 1, "the language of the statute is perfectly plain and does not call for judicial construction." And that language is that the report of the referee "shall be final and conclusive between the parties" unless there shall have been entered in the minutes of the court a reservation of trial by jury at the time of ordering the reference. This was not done in the case before us.
The action was brought to recover upon three trade acceptances, which defendant by his answer admitted, and an open account, which to the extent of $1,750.53 was also admitted by the answer.
Judgment was entered for the total of these, amounting to $7,030.42 with interest.
The defendant also filed a counter-claim in five counts as to which, in its answer, the plaintiff reserved the right to strike out.
The important matter presented by the counter-claim was whether or not the parties had adopted a contract ...