Perth Amboy evening news., 1923-12-11
Proceedings Of the Board Of Aldermen OF
the City of Perth Amb0y, n. j.
November 10Th. 1928

partment to attend Memorial Service OF
Sunday, November 18th. at 1880 p. M.
was received and upon motion Of Mr.
The Judiciary Committee reported In
form of an opinion for Attorney Harry >
Medinets. re: Hartmann VS.. City of Perth
Amboy case as follows:
COPY
Harry S. Med.nets
Counsellor at Law
1877 Smith Street
Perth Amboy,. N. j.:
Hon. Board of Aldermen,
CITY Hall.
City
Gentlemen:
RE: WILLIAM HARTMAN VS..
CITY OF PERTH AMBOY
The Judiciary Committee of your Hon
orary Body called upon me respecting an
opinion relative to The above entitled mat
STATEMENT OF FACTS
On November 22nd, 1922 a II
this matte rwas issued out of the PERTH
Amboy District Court returnable on NOV
ember 9th, 1922 to recover weges: Lee
L~owenkopf appeared as Attorney of the
plaintiff. and Leo Goldberger as Attorney
was adjourned until December 18th, 1922
then to December 14th, 1922; then to De
cember 18th, 1929.
senting the respective parties appeared
The case was called and Tor some reason
which does not appear OF record, the same
WAS ulSDl1SStQ DE way u hOIl~Sulls
on December 18th, 1922, Leo Lowenkopi
Attorney for the plaintiff. prepared q
written notice addressed to the City OF
Perth Amboy and Leo Goldbsrger, It's At
torney, wherein and whereby he gave no
tlce that on December 21st, 1929 at IL
o'clock in the forenoon, that he would
make application TO have the Coure re,
consider the decision OF non-suit rendered
in the above entitled matter on the lSth
day of December. 1922, and Mt the. sama
time would move for judgment OF the
= - az - H. fAa6 nj HhI nnf1Hp
was filed with the Clerk of the District
Court of Perth Amboy on December 2lst'
1922.
show whether o. not any of the Attorneys
appeared on that day relative to TINS
notice, nor do the records show that TINS
notice was ever served upon the City, 81
attached thereto. ncr any acknowledgement
Of service. The records of the Court 40
not show the disposition OF this notice,
excepting an adjournment TO Decemoer
ON December 28th, 1922 the plaintiff ap-
peared by David Wilentz, as the Attorney
of Leo L~owenkopf, Attorney OF Iecoru'
There was not appearance for the City on
this day. Judgment was entered Tor rave
hundred and Twenty-Eight Dollars anu
siS ny e INV 18Th. 1928 the Honorable
Inmes l.. Bergen, Justice of the Supreme
uourL signed a Rule to snow cause Oh
Motion for Mardamus, REQUIRING yuu IL
Mn AS Wtlt as
10 show cause on November Nh' 1870.
why a premptory or alternative VIII ~
MandamIs shall not be issued out Oh tne
Supreme Court. commanding the payIhent
of the amount of the Judgment
In this matter.
All appeals from judgments OF the Dts,
trict Court must be made wltnln twenty
days after the entry OF judgment, conSo
uuently your right to appeal mas osei
lost. - Count Il, set
aside a iudt meLt in dgrant a new IRA
should be properly made wlthln thlty
fays after the rendering or a VeruiSt' Lnis
was not don't and consequently Inc Niss
las lost its right to set aside TINS judy
ment by way of IN application TO tne
Judge of the District Court, whleh ien'
dcred the judgment IN question ? perth
Ambov was in a position to defend TINS
cause of action before the Judge OF ~
Perth Amboy District Court with the h'i'
10Y plaintif was suspended by the Ma
,or of the city CT Perth Amboy on Marel
Is 1929. charges having b@en preterTeo
against plaintiff for condues uu ude
Q. said plaintiff at the time OIL sus'
nension was under indictn ent fer a crln'-
iaal ofense. . a,tv af.
ter his suspension nor while under sus-
~ No trial was had on said charges pc
rause of an UNDERSTANDING lhab eHV R
tiff would resign, and said resignation We
altered and accepted on June II, lSzV,
g.. The resignation of the %plaintif pre-
vented the trial by the defendant On lhs
charges preferred by the plalntlH'
(The foregoing enumerated deIenSes arr
taken from the records o. the Perth Am
Loy District Court and represent the spe
cincation of defenses filed by Leo Solu'
terres. as Attorney of the City of Perth
Amboy, but which ware never auVahSe1
to the Court by reason OIL me iaGt I'M
the City did not appear In Court Inlods.
it's Attorney, or OTHERWISE on the N"'
when judgme was rendered.)
on the other hand, these appear to ps
equitable defenses. OF which only tn,
Court of Chaneery had jurisdiction.
doubt. that the Judge of the Perth Am
how District Court could have taken cog
nizance of them uLdcr our iules OIL owl
dence. However, steps SHOULD ave pSe.
taken, prior to the entry OF judgment
TO appeal to the Court or Chancery 10
equitable relief. l feel quite conhasn.
that the Court OF Chancery would nav
restrained the Perth Amboy D.strlct Coul
from entering judgment until sueh tliu'
as 1t could have heard the city OIL PERT
Amboy on the merits of is oefenses, an,
If found to be based upon tact' then u
make the restraint permanent. 80,
While this was not DONE, and altnouSi
the time for making an appeal mas elapsss
end although no eftors was maos w.ttttnhii,,
which to make application 10 set dsia'
the judgment, and the mater mas W.
sequently dfifted along until TINS thn'
without any action taken for the protec
tjon of the City's interest, me Court .
Chancery may IT'LL take eognlzance y ~
of the situation IL proper proof Is pre-
sente,1. give equitable relief to the Clly. +,
feel confident, that If the City of PERT
Amboy can produce a ~prepondersnce .
evidence, tina will satisfy tina Court, Lna
the resig nation of the plalntlt MAS esiIteve :.
Amboy, by reason of the express repre-
representation and promise OF Willian
Hartman, or anyone speaklng aulnol.a
lively in his behalf, that II ms reslsna
ton was accepted and the pending charge
against him withdrawn. that ne "oul,
walve all claims to his back salary; Ina
This Judgment was rendered by the Juds'
~ the Perth Amboy District Court by rea
son of a mistake or fraud upon III ina
HE city of Perth Amboy had other equit
| able defenses to this issue Oh wh ra,,rt
Court of law, such as the District Court
| could not take cognizance Of by reason y
certain rules and principals OIL law thei
l believe even at ms time ina. an .intif
would be allowed restraining the piaiht vi
from proceeding with the collection Oh III
It is also my opinion. that judgment :
this matter was enormously entered OF
December 2sth, 1922. for the foilowlnl
The records, as stated in the statemen
| NJ Facts. shows that this case was uls
missed on December 18th, 1922. ~ doe
NOT show the disposition made OIL the no
tice TO set aside this non-sult anu conse
ouentiv nave the right to assume ina
lie Cou,t without considering this motto
and without taking any formal action !
set aside his non-sult, record SHOWS -
Formal action or order to set ASIDE TN
tudgment1 entered this dgm unue
= MISREPRESENTATION Of the facts. ,n
It would be proper, under the eihr rnv
Ing certiorari proceedings in the Suprenl
Hourt to set aside the judgment on ~
grounds that the Court had lost lJnrlSui ;
re- non-stit( and entered judgment WITT
ont having ffst obtained jurisdiction o
nroperly setting aside the non-suit.
II the City prevailed in TINS procsauu
and was successful in having the JuuH
Iaent set aside. the case would be ser
hack to the Perth Amboy District Coul
for re-triIl. Then the City would also =
-.tsttrn 20 90 iuto Chancery 1or