On appeal from the Supreme Court, whose opinion is reported in 125 N.J.L. 125.
For the plaintiff-respondent, Richard J. Fitzmaurice.
For the defendant-appellant, Harry Kay.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. This is an appeal from a judgment of the Supreme Court affirming a judgment of the Essex County Circuit Court in favor of the plaintiff-respondent and against the defendant-appellant.
The respondent sued on a contract and alleged in its complaint that its assignor, Zwigard, entered into a written contract with the defendants Epstein and Century Construction
Co., to furnish labor and materials in the construction of a certain house; that some payments were made leaving a balance of $1,650; that the plaintiff furnished the materials and Zwigard assigned his claim for $1,650 to the plaintiff; and the plaintiff demanded payment of the same, with interest and costs. There was endorsed on the complaint a demand for affidavits of merits. The summons was tested September 24th, 1937.
The defendant Epstein filed an affidavit of merits and issue was finally joined between the plaintiff and him on an amended answer and counter-claim, setting up another alleged contract between Epstein and Zwigard for the same work, and other necessary subsequent pleadings.
The appellant filed no affidavit of merits or answer, but the plaintiff, although entitled thereto, did not move for a judgment by default under the rules and R.S. 2:27-191 et seq., N.J.S.A. 2:27-191.
On November 1st, 1939, the trial court, apparently on its own motion, so far as the printed record discloses, ordered a reference pursuant to R.S. 2:27-178; N.J.S.A. 2:27-178. On the same day counsel for the defendants filed a dissent to the reference and a reservation of a right to trial by jury for both defendants, relying upon R.S. 2:27-179; N.J.S.A. 2:27-179. This was the first appearance of the appellant in the cause and we make no comment on its effect, except to observe that in no far as the appellant was concerned there was, as to it, no triable issue under the pleadings.
The matter then came on before the referee and counsel noted an appearance for both defendants. During the course of the hearing, the respondent moved for judgment against the appellant upon the ground that it had failed to file an answer. This motion was improper, R.S. 2:27-193; N.J.S.A. 2:27-193. However, and we quote from the record: "The attorney for the defense had expressly stated on the record that he appeared on behalf of both defendants. He pleaded surprise and moved for leave to file an answer for the corporation upon the ground that the failure to do so was inadvertent. Disposition of all of these motions was reserved." Referee's Report, S.C., p. 58 11. 38, &c. All parties
then proceeded with a trial on the merits of the substantive questions of law and fact which the parties ...