Opinion
No. 47-648.
05-21-1920
ROSENBERG v. CENTURY-PLAINFIELD TIRE CO. et al.
William Harris, of Newark, for the motion. Joseph A. Duffy, of Jersey City, opposed.
Suit by Nathan Rosenberg, trading, etc., against the Century-Plainfield Tire Company and others. On motions for leave to discontinue action and to strike out defendants' counterclaim. Motions granted.
William Harris, of Newark, for the motion.
Joseph A. Duffy, of Jersey City, opposed.
FIELDER, V. C. An answer and counterclaim has been filed to complainant's bill, which counterclaim sets up a claim for unliquidated damages growing out of the contract which is the subject-matter of complainant's cause of action. Complainant now moves for leave to discontinue this action, and he also moves to strike out the counterclaim.
1. Complainant may move at any time, subject to chancery rules 115 and 116 (100 Atl. xvii), to have his bill dismissed, with costs, and his motion will therefore be granted to dismiss the bill of complaint, with costs to defendant.
2. Under the Chancery Act of 1915, Supplement Compiled Statutes, p. 129, par. 86, a defendant may, subject to the provisions of other rules contained in that act, counterclaim any cause of action against complainant. If, however, the counterclaim cannot be conveniently disposed of in the pending action, the court may strike it out. Defendant's claim being for money damages for complainant's alleged failure to perform his contract, an issue is presented which should be sent to a jury, and therefore the counterclaimcannot be conveniently disposed of in this court. Rule 54 of the same act, as found on page 132, Supplement Compiled Statutes, par. 111, limits the matters which may be set up by counterclaim to such as were the proper subject of a cross-bill under the then existing practice.
This counterclaim does not come within the rule, because it sets up a cause of action for which defendant has a complete remedy at law, and this court should not retain jurisdiction, after dismissing the bill, merely for the purpose of granting defendant a purely legal remedy. Shaw v. Beaumont Co., 88 N. J. Eq. 333, 102 Atl. 151, 2 A. L. R. 122.
Moreover, a demand for unliquidated damages is not cognizable in this court. Norton v. Sinkhorn, 61 N. J. Eq. 508, 48 Atl. 822. Complainant's motion to strike out the counterclaim will be granted, with costs to complainant.