Citation Numbers: 2 N.J. Misc. 7
Judges: Minturn
Filed Date: 12/28/1923
Status: Precedential
Modified Date: 7/25/2022
The opinion of the court was delivered by
The Court of Errors and Appeals, at the present term (Muhlenbeck v. West Hoboken, vol. 1, No. 42, N. J. Adv. Rep. 1495), held that the judgment of nonsuit directed against the plaintiff at a former trial was error.
The question involved was whether the plaintiff had entered into a contraed with the town to accept a reduced salary from that established by ordinance. The Court of Errors and Appeals, on the facts submitted, held that the question was at least one for the jury. The facts presented on this motion present a stronger ease than that presented upon the
When to decide the question it becomes necessary to take testimony to enable the court to determine the relative merits of the controversy, or the justice or injustice of the defense, the defendant’s constitutional right to a jury trial requires that the motion to deprive him of his defense be denied. The taking of testimony upon the issue thus presented therefore, on this motion, will serve no practical legal purpose, and the motion to strike out will be denied, but without costs.