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Neuscheler v. See

Decided: April 5, 1944.

ALBERT W. NEUSCHELER, PLAINTIFF-RESPONDENT,
v.
FRANK G. SEE AND MABEL E. SEE, DEFENDANTS-APPELLANTS



On appeal from a judgment of the Second District Court of the City of Newark.

For the plaintiff-respondent, Michael S. Precker.

For the defendants-appellants, William E. Holmwood.

Before Justices Case, Donges and Porter.

Donges

The opinion of the court was delivered by

DONGES, J. This is an appeal from a judgment of the Second District Court of the City of Newark in favor of the plaintiffs and against the defendants on the counter-claim filed by defendants.

On March 2d, 1927, the defendants executed a bond and mortgage to the plaintiff in the sum of $1,000. This was a second mortgage and later the first mortgage was foreclosed and the property sold. Although the bond and mortgage were in the sum of $1,000, admittedly only $900, less search costs, was actually advanced by the plaintiff. Plaintiff instituted the present suit upon a claim that there was a balance due on the loan of $495 together with interest from September 2d, 1940.

Defendants filed specification of defenses and a counter-claim. Their position was that the transaction was usurious; that plaintiff was entitled to be repaid only his principal; that he had been repaid his principal and $501.40 more, by way of interest and bonuses, and that defendants were entitled to judgment for such amount in excess of principal, or such part thereof as did not exceed the jurisdiction of the District Court.

Upon the filing of the counter-claim, plaintiff filed a discontinuance of his cause of action and claimed before the District Court, and now claims in this court, that upon the discontinuance of his action the defendant could not proceed upon the counter-claim because it was not verified by affidavit. Plaintiff cites R.S. 2:32-98:

"If defendant files a set-off, accompanied by affidavit that the set-off is not filed for delay and that plaintiff is indebted to him in a certain sum, plaintiff shall not, without defendant's consent, be permitted to discontinue his action or suffer a judgment of nonsuit. In such case the cause, if plaintiff

does not move it for trial, shall be heard on defendant's motion.

"If defendant's evidence shows that plaintiff is indebted to him or that defendant is entitled to a judgment in his favor, defendant shall have judgment for the amount found due him, or such judgment shall be ...


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