Decided: January 23, 1933.
VITO STASSI, PLAINTIFF-RESPONDENT,
ARCANGELO DE FRONZO, DEFENDANT-APPELLANT
On appeal from the Supreme Court.
For the appellant, Arnold Mancusi Ungaro (Algernon T. Sweeney, of counsel).
For the respondent, Samuel B. Feld.
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This is an appeal from a judgment of the Supreme Court, Bergen Circuit. Suit was instituted by the plaintiff on a claim assigned to him by one Victorio Congialosi, who was an artist and had performed services as such, in decorating the residence of the defendant. The jury rendered a verdict in favor of the plaintiff, for $2,182.95, and judgment was entered for that amount, from which this appeal is taken.
The appellant presents six grounds upon which a reversal is sought, but we have deemed it unnecessary to examine them, for two reasons. The record shows that the trial judge allowed the defendant a rule to show cause why the verdict entered should not be set aside and a new trial granted; and it does not appear that any exceptions were reserved on that rule, which the court, after hearing, subsequently discharged. Rule No. 129 of the Supreme Court reads: "Granting to a party a rule to show cause why a new trial shall not be granted shall be a bar against him to taking or prosecuting an appeal, except on points expressly reserved in said rule." In the case of Galamb v. Erie Railroad Co., 108 N.J.L. 7, Chief Justice Gummere, speaking for the Supreme Court, said: "Where a party sees fit to invoke the discretionary power of a judge to review the case on a rule to show cause, he waives the right of appeal, excepting so far as the court sees fit to reserve matters as grounds of appeal." It further appears from the record, that the matters urged on the rule to show cause are in substance the same as set forth and urged as
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grounds for the appeal now before us, with the possible exception of the last ground "because the judgment is contrary to law," which is ineffectual for the purpose of review. This court, in the case of Margolies v. Goldberg, 101 Id. 75, said: "On appeal from judgments entered after defendant's rules to show cause had been discharged the appellate court will not consider and decide any question which was assigned as ground for setting the verdicts aside on the rule to show cause, such question being res judicata, whether argued or not, and although not decided in terms, on the rule to show cause."
In view of the rules referred to, we conclude that the judgment should be affirmed.
For affirmance -- THE CHANCELLOR, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, BROGAN, HEHER, KAYS, HETFIELD, WELLS, KERNEY, JJ. 13.
For reversal -- None.