FRYTEZ v. GRUCHACZ, 125 N.J.L. 630 (1941)

17 A.2d 541

ALEKSC FRYTEZ, PLAINTIFF-APPELLANT, v. KATHERINE GRUCHACZ, DEFENDANT-RESPONDENT.

Court of Errors and Appeals.Submitted October 25, 1940 —
Decided January 28, 1941.

1. A nonsuit is proper when a money claim is not pressed to trial within a reasonable time after origin.

2. The delays in the prosecution of this action justify a nonsuit for lack of prosecution.

On appeal from the Essex County Circuit Court.

For the appellant, Rospond Rospond (Felix Rospond, of counsel).

For the respondent, Thomas Brunetto.

The opinion of the court was delivered by BODINE, J.

The appeal is from a judgment of nonsuit entered pursuant to N.J.S.A. 2:27-215. We find no abuse of discretion. Stein v Goodenough, 73 N.J.L. 812.

An action was commenced in November, 1926, to recover on a note of April 23d 1923, and for money advanced to the defendant during the years 1922 to 1925. Nothing seems to have been done in this cause till a default judgment was entered in 1939. This judgment was vacated and the service of a summons set aside. An earlier suit for the same cause of action was then discovered, and it is claimed that a notice of trial was then served on the defendant, her attorney being

Page 631

dead. The plaintiff’s attorney had not notified the defendant to employ an attorney. N.J.S.A. 2:20-6. It is not necessary, however, to decide whether that step should have been taken since the trial judge has entire control of his calendars, and we do not think a cause so long delayed in prosecution should have a place in the court.

The judgment is affirmed.

For affirmance — THE CHANCELLOR, PARKER, CASE, BODINE, DONGES, PORTER, DEAR, WELLS, RAFFERTY, JJ. 9.

For reversal — THE CHIEF JUSTICE, HEHER, PERSKIE, WOLFSKEIL, HAGUE, JJ. 5.