Decided: February 5, 1937.
MARIA MELUSO, LOUIS MELUSO AND ARSENIO MELUSO, PLAINTIFFS-APPELLANTS,
RICHARD FUSCHILLO, SOMETIMES KNOWN AS GABRIEL FUSCHILLO, AND FELICETA FUSCHILLO, SOMETIMES KNOWN AS MINNIE FUSCHILLO, AND SOMETIMES KNOWN AS PHYLISS FUSCHILLO, DEFENDANTS-APPELLEES
On appeal from the Second District Court of Jersey City.
For the defendants-appellees, Henry Pass.
For the plaintiffs-appellants, Melosh, Morten & Melosh.
Before Justices Trenchard, Bodine and Heher.
[117 NJL Page 463]
BODINE, J. The plaintiffs sued for rent at $25 a month for the thirteen months of defendants' occupancy from October 1st, 1933, to October 31st, 1934, of premises situate at 5 Brunswick street, Jersey City. The District Court regarded the action as barred by reason of a judgment in a previous action brought by one Louis Meluso, one of the plaintiffs in the present action. The present plaintiffs are Louis Meluso, Maria Meluso and Arsenio Meluso, the owners of the premises in question, and the persons who may be entitled to the rent reserved. The judgment against Louis Meluso, who was not entitled to recover the rents in an action brought in his own name, was, of course, no bar to the present action. Clare v. International Brotherhood, 14 N.J. Mis. R. 910. All those entitled to the rents were necessary parties plaintiff.
Another proceeding was pleaded in bar; that was an action by a holder of a promissory note made by the defendant Richard Fuschillo to the order of Louis Meluso and endorsed by him to Joe Zampella. The judgment against Zampella in that action did not necessarily bar the rights of Maria Meluso and Arsenio Meluso to their rents. The doctrine of res adjudicata does not apply under the circumstances. Freudenreich v. Mayor and Council, &c., 114 N.J.L. 290.
Whether at a new trial it may appear that Feliceta Fuschillo, the wife of Richard, charged her separate estate for her share of the family rent need not now be considered because it is a question of proof.
The judgment in favor of the defendants is reversed.