On appeal from a judgment of the Supreme Court, whose per curiam opinion is printed in 12 N.J. Mis. R. 1.
For the appellant, Charles Blume.
For the respondents, Joseph B. Stadtmauer.
The opinion of the court was delivered by
DONGES, J. This appeal brings up a judgment of the Supreme Court affirming a judgment of the Passaic District Court in favor of defendants-respondents on their counterclaim.
In this court and in the Supreme Court, respondents objected to the consideration of the case on the ground that the allowance of a rule to show cause reserving grounds of appeal, but upon the argument of which rule the grounds of appeal were fully argued, was a waiver of the right of appeal. The petition for the rule to show cause prayed: "that an order be made directing the defendants to show cause before this court, why the judgment which was rendered in favor of the defendants on the counter-claim, in the sum of $212.50, and the judgment rendered against the plaintiff on the state of demand, should not be set aside and for nothing holden, but that a judgment be rendered in favor of the plaintiff on the state of demand in the sum of $212.50, and judgment of no cause of action on the counter-claim."
The only objections noted in the trial were to the refusal to nonsuit defendants on their counter-claim and to the refusal to direct a verdict for plaintiff on the whole case, and to the admission of Exhibit D-1.
The first two of these questions were discussed on the argument of the rule to show cause. In the order dismissing the rule to show cause, the trial judge said:
"And whereas on November 9th, 1932, the court granted a rule requiring the defendant Nat Leschinsky to show cause why judgment should not be rendered in favor of plaintiff on the state of demand in the sum of $87.62 and judgment in favor of plaintiff on the counter-claim.
"And whereas the said rule to show cause was argued in open court on November 16th, 1932, by Charles Blume, Esq., attorney appearing for plaintiff, and Joseph B. Stadtmauer, Esq., appearing for defendants, and decision reserved by the court on said argument,
"And whereas, the court has duly considered the entire matter and due cause appearing,
"It is, on this 12th day of April, 1933, ordered that the rule to show cause allowed to plaintiff on November 9th, 1932, be ...