Decided: September 29, 1949.
EMANUEL SHAPIRO, GENERAL ADMINISTRATOR AND ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF HARRY SHAPIRO, DECEASED, PLAINTIFF-RESPONDENT,
PAULINE S. RICE, DEFENDANT-APPELLANT, AND A. GIBBONS CO., A CORPORATION OF NEW JERSEY, DEFENDANT, AND KAVENY BROS. CO., A CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT, AND ROBERT DARBEN, DEFENDANT
McGeehan, Colie and Eastwood. The opinion of the court was delivered by McGeehan, S.j.a.d.
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Defendant Pauline S. Rice appeals from an order entered March 31, 1949, in the Law Division of the Superior Court, which ordered "that the Cross-claim of defendant, Pauline S. Rice, against the defendant, Kaveny Bros. Co., be and the same is hereby stricken."
The defendant Pauline S. Rice filed a cross-claim against the defendant Kaveny Bros. Co., alleging a contingent cause of action based on a contract and demanding that, if judgment be returned against her in the main suit, a judgment in her favor for the same amount be entered against the defendant Kaveny Bros. Co. Thereupon, Kaveny Bros. Co. moved to dismiss this cross-claim on the ground "that the allegations of the said Cross Action do not state a claim upon which relief can be granted." The court below treated the motion as one to strike the cross-claim, and granted such motion on the ground "that to inject into the trial of the plaintiff's case the determination of the issues which the cross claimant attempts to raise might prejudice or embarrass the plaintiff's case or that of one or the other of the defendants." It is obvious that the court below did not deal with the question whether this cross-claim stated a claim upon which relief could be granted; it decided only that the closs-claim could not be conveniently tried with the main case. Since the questions to be resolved in the determination of the motion to dismiss the cross-claim will differ, depending upon the outcome of the main suit, a determination at this time would be premature.
The former practice (R.S. 2:27-141, former Supreme Court Rule 21(f)), under which a cause of action could be
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stricken on the ground that it could not be conveniently tried with the other causes of action joined in the same suit, has been superseded by Rule 3:42-2, which provides: "The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim * * *."
The order under appeal is reversed, without costs. The court below is directed to enter an order severing from the main case the cross-claim of the defendant Rice and the motion for dismissal of the cross-claim made by the defendant Kaveny Bros. Co., and withholding determination of the motion to dismiss the cross-claim until the disposition of the main case.