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Fusco v. Hale Furniture Co.

Decided: June 28, 1967.

IRENE H. FUSCO AND CHARLES F. FUSCO, PLAINTIFFS-APPELLANTS,
v.
HALE FURNITURE CO., INC. AND RICKA REALTY COMPANY, DEFENDANTS - RESPONDENTS



Sullivan, Kolovsky and Carton. The opinion of the court was delivered by Carton, J.A.D.

Carton

[95 NJSuper Page 541] Plaintiffs Irene H. Fusco and her husband, Charles F. Fusco, suing per quod, instituted an action in the Union County District Court on December 20, 1965 to recover damages for personal injuries sustained by Irene Fusco as a result of a fall on the sidewalk in front of defendants'

property. Pursuant to leave granted, plaintiffs appeal from the denial by a Superior Court judge of their motion to transfer the action to the county court.

Plaintiffs' initial complaint in the county district court alleged total damages of $6,000, each plaintiff stating a separate claim for $3,000. N.J.S. 2A:6-34. The injuries described in plaintiffs' initial answers to interrogatories and the special damages which totaled $128 indicated that their total recoverable damages would be well within these limits.

In an affidavit in support of plaintiffs' motion to transfer, their attorney set forth that they were advised in July 1966 by Mrs. Fusco that she was required to be hospitalized for an operation on her spine; that the medical expenses for treating her had increased to $877, and that she had been unable to work since July 6, 1966, at which time she was earning $38 weekly. Allegedly, the operation, additional expenses and subsequent disability all stem from Mrs. Fusco's fall on defendants' property.

The motion to transfer was made in August 1966. At that time plaintiffs were barred by the statute of limitations from instituting a new suit in the County Court or Superior Court since the accident occurred on January 16, 1964.

We conclude that the plaintiffs' motion should have been granted.

The pertinent part of the statute, N.J.S. 2A:6-34, under which plaintiffs' actions were initiated in the county district court reads as follows:

"(b) County district courts shall also have jurisdiction * * * in actions for damages resulting from negligence where the amount in dispute does not exceed $3,000.00, exclusive of costs; * * *."

Since the amount claimed by each plaintiff did not exceed $3,000, the county district court, of course, had jurisdiction of the action under the terms of the statute because the amount in dispute did not exceed the monetary limit prescribed by it. See Reiser v. Simon, 63 N.J. Super. 297, 301 (App. Div. 1960).

Where, as here, it appears that plaintiffs' damages have substantially increased after the institution of the action, so that there exists the reasonable likelihood of a recovery in excess of $3,000, it can no longer truthfully be said that the "amount in dispute" is within the limits prescribed by the statute for the county district court. Upon a proper showing of such circumstances, substantial justice and the spirit of the rules of court dictate that a plaintiff should be entitled to have the dispute, in its enlarged form, resolved by a court having the requisite jurisdiction. R.R. 4:121 provides that "the court shall proceed in any lawful manner not inconsistent with the Constitution, these rules or any applicable statutes."

We hold that the Superior Court has inherent power to order the removal of this district court ...


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