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Estate of Cornelia V. v. Lubow

Decided: August 16, 1938.

ESTATE OF CORNELIA V. V. BOORAEM, INCORPORATED, A CORPORATION, PLAINTIFF,
v.
MORRIS LUBOW AND PARK CLOTHES, INCORPORATED, A CORPORATION, DEFENDANTS



On writs of certiorari.

For the prosecutor, Charles C. Colgan (L. Edward Herrmann, of counsel).

For the respondents, August Ziegener and Sidney H. Newman (Nathan Baker, of counsel).

Before Justices Case, Donges and Porter.

Porter

The opinion of the court was delivered by

PORTER, J. The writs bring up for review two judgments from the First District Court of Jersey City. The plaintiff

was the owner of premises in Jersey City and the defendants were tenants therein. Two suits were brought by the plaintiff against the defendants to recover double rent for continuing in possession after expiration of the term of letting. Four hundred dollars was claimed due in each suit. One suit was filed with the clerk of the court on March 31st, 1937; the summons was tested the same date. This suit was for double rent for the month of March, 1937. The other suit was for double rent for the month of April, 1937, filed some days later, the summons being tested the 8th day of April, 1937.

Both cases came before the court for trial on September 23d, 1937. It appeared that the date of the summons in the first case had been altered in the clerk's office from March 31st, 1937, to April 1st, 1937.

The defendants moved for dismissal on the ground that the plaintiff was endeavoring to collect a debt of $800 through the institution of two suits of $400 each in order to bring the suits within the jurisdiction of the court, arguing that both suits had been commenced after the alleged debt had accrued.

We conclude that the court had no jurisdiction and so was right in dismissing the suits.

On certiorari this court will only consider the record of the court below. That record shows both suits commenced in April. The District Court act, section 55, provides that processes of the court shall be tested in the name of the judge and signed by the clerk thereof on the day when issued. The summons in the first of the instant cases was dated April 1st, 1937, by the clerk and that date governs rather than the date ...


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