This is an action on a promissory note. Plaintiff has moved for summary judgment on the basis of the pleadings and an affidavit as to the amount claimed to be due. The defendants have asserted the defense of fraud in the factum , alleging that the note was signed in blank and filled in for an amount greatly exceeding that for which permission was granted.
A reading of plaintiff's pleadings and affidavit reveals a number of uncertain and contradictory facts. The amounts alleged to be due are stated differently in the affidavit as compared with the complaint. The complaint alleges that a 15% attorney's fee was agreed upon, whereas the copy of the note attached to the affidavit provides for a 25% attorney's fee. The complaint alleges that the principal balance due is $4,170.49, whereas the affidavit states this figure as $4,165.49. The amounts computed for the attorney's fee differ as do the amounts defendants are alleged to have paid on account.
The complaint asserts that, because of an acceleration clause, the note has matured and the entire balance is due and payable. The complaint further indicates that after the default but before the institution of suit, the note was assigned to plaintiff. Thus plaintiff's status as a holder in due course appears to be seriously in doubt. See Cramer v. Weith , 20 N.J. Super. 577, 582 (Ch. Div. 1952).
In view of the many uncertainties, it cannot be said that the pleadings and affidavits "show palpably that there is no genuine issue as to any material fact." R.R. 4:58-3. Viewing the moving papers critically as suggested in Monmouth Lumber Co. v. Indemnity Ins. Co. of N. America , 21 N.J. 439, 449 (1956), the motion must be denied.
During the argument of the motion an issue of more serious consequence to plaintiff's status was revealed. It was disclosed that the plaintiff was the secretary of her attorney and that she had been assigned the note solely for the convenience of appearing as a plaintiff to avoid the necessity of the assignor's posting security for costs as a non-resident plaintiff pursuant to N.J.S. 2 A:15-67.
At the court's invitation, Miss DeCosmo appeared and testified. She stated that the note had been assigned to her by the Improvements Corporation of Maryland for the purpose of starting suit, that she paid nothing for the note, and that she expected to receive nothing from the proceeds. Her lack of substantial interest in the litigation is best illustrated by the following exchange:
"Q. Do you have an arrangement with anyone concerning the proceeds of this suit? A. What do you mean?
Q. In other words, if judgment was recovered in this case, what would you do with the money that was recovered? A. I don't know. Mr. Semel, the attorney for the plaintiff, I imagine will turn the money over to the Improvements Corporation of Maryland.
Q. And yourself? A. I have no interest in this action."
Plaintiff's attorney quite candidly admitted that his secretary was, to use his phrase, "a dummy plaintiff," and that "The suit is assigned to a dummy plaintiff or straw man for the purpose of convenience only, and it's for the purpose of avoiding security for costs."
Defendants' attorney moves that the complaint be dismissed on the ground that the plaintiff was not a real party in interest within the meaning of R.R. 4:30-1, and that the device ...