N.J. Constitutional Convention: Vol. 4, Page 370

Wednesday, July 9, 1947 (Morning session)

MR. GAULKIN: That is precisely so.

MR. SOMMER: And, therefore, I may come too late for the relief at law which may be the only relief I am entitled to.

MR. GAULKIN: Precisely so, Dean, except in those cases where there is a transfer of the cause of action, but that won't help you in your situation where the law court determines that your cause of action at law is a new action.

VICE-CHAIRMAN: And reverse the situation, so that the action is started at law and an equitable defense sought to be raised is excluded by the statute running there. Wouldn't the same thing apply there?

MR. GAULKIN: Precisely. As a matter of fact, that was one of the grounds of appeal in the Nazzaro case. There, however, the court held that in view of the fact that we hadn't discontinued the action at law and had simply filed a bill in Chancery to help the action at law, we were all right, but if we had discontinued the action in the Nazzaro case and started all over again, we would have been out of luck. There are numerous cases of that sort.

MR. SOMMER: You lost not only the opportunity, but lost the remedy.

MR. GAULKIN: Precisely, plus the additional fact that in most insurance cases the policy fixes shorter periods of time within which to sue, shorter than the statute of limitations. Fire insurance policies in New Jersey require that action be instituted within one year after the fire, and as you can see by the cases I have mentioned, you rarely get a decision from the court within that time.

MR. McMURRAY: Yes, but in your statements where you favored integration of equity and law you have referred to the federal system quite frequently. Now, if you were writing the Judicial Article in the Constitution, how far would you go in following the federal set-up?

MR. GAULKIN: Well, as to draftsmanship, I haven't given that much thought. Of course, as we all know, the federal provision is very brief and has worked out very well. Personally, I would see no objection to the same provision in our State Constitution, leaving the creation of the courts to the Legislature as occasion requires from time to time. We have had, particularly in the federal courts, situations where under stress of war we have had new types of cases arising which have created a good deal of litigation, such as the O.P.A., etc. Our Legislature should be free, I think, to establish the courts needed in such emergencies and to abolish them when the emergency is over.

MRS. MILLER: I would like to ask a question as to the number of dual actions there are where litigants have to start more than one action. Do you know how many there are, Mr. Gaulkin?

MR. GAULKIN: I couldn't answer that at this time. These cases

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