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Clawans v. Hahne & Co.

Decided: October 16, 1939.

LILLIAN CLAWANS, TRADING AS THE ADDING & CALCULATING CO., PLAINTIFF-APPELLANT,
v.
HAHNE & CO., DEFENDANT-RESPONDENT



On appeal from a judgment of the Essex County Circuit Court.

For the appellant, Ferdinand D. Masucci, Herbert A. Kuvin and Lillian Clawans, pro se.

For the respondent, Lum, Tamblyn & Fairlie and James Raymond Berry.

Before Brogan, Chief Justice, and Justices Donges and Porter.

PER CURIAM.

Plaintiff entered suit in the Essex County Circuit Court to recover a sum of money alleged to be due for work and services performed by plaintiff for defendant.

Suit was commenced July 3d, 1937, and a trial was had on November 15th and 16th, 1937, resulting in a disagreement of the jury. The case was retried on January 11th and 12th, 1938, resulting in a verdict for defendant.

There is no judgment contained in the record, but it is admitted that a judgment for defendant was duly entered on January 12th, 1938.

On February 24th, 1939, plaintiff filed a notice of appeal from the entire judgment and "trial court's order refusing a new trial." The Supreme Court, on May 8th, 1939, ordered the appeal dismissed for failure to appeal within time from the entry of judgment.

The matter argued before us had to do with the refusal of the trial judge to allow a rule to show cause why a new trial should not be granted. It is urged that in so refusing, there was an abuse of discretion on the part of the trial judge.

As stated, the trial occurred on January 11th and 12th, 1938. The application for a rule to show cause was noticed by plaintiff on February 17th, 1939, more than a year after trial. The affidavits in support of the application were, with the exception of one by plaintiff and one other, executed in the month of January, 1938, within a few weeks after the second trial. Plaintiff seeks a rule upon the ground that certain inventory sheets and records evidencing the amount of service rendered by plaintiff for defendant were not produced

at the trial, in response to plaintiff's notice to produce same, although plaintiff asserts they were not destroyed as asserted by defendant, but were still in existence.

Passing the question of the materiality of the records, in view of plaintiff's testimony as to the amount of service rendered by her, and the defense of payment by defendant of a sum agreed upon by plaintiff and defendant in full satisfaction, we think it does not appear that there was an abuse of ...


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