The opinion of the court was delivered by: BYERS
The plaintiff moves for an order striking the answer as sham and for summary judgment.
On behalf of the motion, there are submitted an amended complaint (the date of verification of which is not disclosed) which demands judgment in the sum of $1,527.50 with interest from January 6, 1937, and the answer. Upon those pleadings, the court inquired of the plaintiff concerning its theory of the court's jurisdiction, since less than $3,000 seemed to be involved.
In response, a memorandum was received on March 13, 1940, in which it is recited that the action was originally commenced in the Supreme Court, County of Kings, State of New York, and that "the relief demanded was judgment in the sum of $1,245, with interest from the respective due dates, toether with the sum of $200 per day for each and every day that the acts complained of had occurred"; that the cause was removed to this court in January of 1938, pursuant to a petition which alleged that the complaint demanded damages in excess of the sum of $14,045, exclusive of interest and costs, and that the petition was granted.
That the amended complaint above referred to was thereafter served, in which judgment was sought as stated.
Under these circumstances, it must be deemed that jurisdiction has not been lost, although if the original demand for judgment had been for $1,527.50, the case could not remain on the docket of this court. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S. Ct. 586, 82 L. Ed. 845.
The amended complaint alleges that the plaintiff is a Colorado, and the defendant Courter Amusement Co., Inc., a New Jersey, corporation, and that the defendants own and operate a theatre known as the Ormont Theatre, at East Orange, New Jersey.
That on or about September 21, 1936, the corporate parties executed an agreement (a copy of which is annexed to the complaint) which, by its terms, was "read and signed at New York City".
That the plaintiff executed the agreement at Denver, Colorado, on September 24, 1936, and that the parties immediately entered into the performance thereof.
That, pursuant thereto, the defendants agreed to pay the plaintiff $15 for each day that "Bank Night" was used during the term of the contract at the said theatre, commencing October 14, 1936, and that the plaintiff furnished to the defendants the articles and accessories required by the contract; and that the defendants did stage "Bank Night" during certain weeks in the year 1936 which are stated, and paid $15 for each operation.
That commencing January 6, 1937, the defendants staged the performance contemplated by the contract twice a week down to the commencement of the action, and until April 12, 1937, they called the performance "Bank Night"; thereafter they called it "Cash Award Night".
That the defendants have wilfully breached the agreement, in that they have paid only $165 on account of the indebtedness which accrued from January 6, 1937, to the commencement of the action, and the sum referred to is demanded as damages.
The answer asserts that the agreement sued upon was entered into "for the purpose of operating a lottery" in the said theatre, and that it was so operated from October 14, 1936, to October 13, 1937.
That the material, numbers, drawing cards, and instructions were furnished to the defendants by the plaintiff under the agreement "for the purpose of operating said lottery, with full knowledge and intention that the defendant Courter Amusement Co., Inc., through its officers, servants and employees, would invite the general public to enter into said lottery and that the general public, as aforesaid, would pay a consideration for an opportunity to win a prize, the winner of said prize to be determined by the use on the part of ...