Decided: January 29, 1948.
HERCULES SALES AND DISTRIBUTING CO., A NEW JERSEY CORPORATION, RESPONDENT,
FRANK SCHNORRBUSCH, INDIVIDUALLY AND TRADING AS MAE'S MUSIC CO., ALSO KNOWN AS MAY'S MUSIC CO., APPELLANT
For the appellant, Joseph L. Freiman.
For the respondent, Emanuel M. Ehrenkranz.
[137 NJL Page 57]
The opinion of the court was delivered by
BODINE, J. An action at law was brought against the defendant to recover the price of goods sold and delivered to the defendant. The defendant entered a general denial and filed a counter-claim against the plaintiff and two others for goods sold and delivered and the counter-claim also contained a count claiming commissions earned by reason of sales to others for the plaintiff.
The court on motion struck the counter-claim, stating that if the defendant has a cause of action against the plaintiff, and the other individuals, it should be litigated in a separate action. This ruling seems wise.
The statute, R.S. 2:27-141, provides: "If defendant files a counter-claim or set-off, the court, in its discretion, may order separate trials. If a counter-claim filed cannot be conveniently disposed of in the pending action, the court may strike it out."
The law was settled in Kelley v. Faitoute Iron and Steel Co., 87 N.J.L. 567, where it was said the counter-claims may be stricken out which the court finds cannot be conveniently tried with the other causes of action joined in the same suit. See, also, D'Orsi v. Galdieri, 126 Id. 574; Chelsea Hotel Corp. v. Gelles, 129 Id. 102.
The judgment under appeal will be affirmed.
For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, BODINE, DONGES, HEHER, COLIE, WACHENFELD, EASTWOOD, BURLING, WELLS, DILL, FREUND, McLEAN, SCHETTINO, JJ. 14.
For reversal -- None.