author: Robeksom, C. P. J.

text:
    Hudson County Court of Common Pleas.
    JOHN WARREN, PLAINTIFF, v. COUNTY OF HUDSON, DEFENDANT.
    Decided January 3, 1945.

      John Warren, pro se.

    For the defendant, J. Emü Walscheid, county counsel, and Thomas J. Armstrong, assistant county counsel.
   Robeksom, C. P. J.

The plaintiff, an attorney and counselor-at-law of this state, sues to recover the sum of $3,500 for legal services and the sum of $275.25 for necessary expenses in connection with such legal services rendered by him as special assistant attorney-general appointed by the Attorney-General of the State of New Jersey to represent the Hudson County Board of Taxation as special counsel to obtain possession of its office and records. The appointment was made and the amounts of compensation and necessary expenses were fixed in accordance with the provisions of B. 8. 52:17—9; N. J. 8. A. 52:17—9, now repealed. Plaintiff filed verified claims with the defendant for said amounts but payment was refused by defendant.

Defendant has filed an answer, the first part of which makes certain admissions and denials and puts plaintiff to his proof as to other allegations of the complaint and then alleges sixteen separate defenses.

The plaintiff now moves to strike out the answer to the complaint as sham and the separate defenses, some as sham and others as frivolous, and to enter summary final judgment.

The answer to the complaint, being that part which directly answers each allegation of the complainant, consists of certain admissions and denials and statements putting the plaintiff to his proof and depends for its efficacy upon the validity of the remaining separate defenses.

Defendant contends that plaintiff’s notice of motion to Strike is invalid because it alleges that the answer is both sham and frivolous. The plaintiff’s notice in paragraph 1 reads: “That the answer to the complaint is sham and all of the services of plaintiff were rendered before B. 8. 52:17—9 was repealed, and the claims of plaintiff to compensation for services and reimbursement for expenses under said statute were then vested by the constitutions of New Jersey and the United States, and the repealing statute did not divest plaintiff of his said rights.” The foregoing statement refers to the defendant’s answer to the particular allegations of the complaint and not to the several separate defenses all of which are specifically attacked in the later paragraphs of the notice. Therefore, the notice is not invalid.

Although a pleading cannot be both sham and frivolous at one and the same time, Holdman v. Tansey, 107 N. J. L. 378, 379; 151 Atl. Rep. 873, 874; National Surety Co. v. Mulligan, 105 N. J. L. 336, 338; 146 Atl. Rep. 372; but can be either sham or frivolous, parts of the pleading may be sham and other parts may be frivolous.

The fact that the notice to strike out an answer was based upon the ground that the answer was sham and frivolous does not prevent its being struck out on the ground that it was frivolous. Fidelity Mutual Life Insurance Co. v. Wilkes-Barre and Hazelton Railroad Co., 98 N. J. L. 507, 510; 120 Atl. Rep. 734, 735.

The fact that an answer was stricken out as sham and not, as it should have been, as frivolous, is not cause for reversal. Soulthorpe v. Commonwealth, Casualty Co., 98 N. J. L. 845, 848; 121 Atl. Rep. 751, 752.

The first separate defense alleges that there are no funds appropriated to the use of the Hudson County Board of Taxation whieh could or can be applied to the uses and purposes set forth in the complaint.

R. S. 52:17—9, now repealed, which was in full force and effect when plaintiff was appointed to represent the Hudson County Board of Taxation and remained so till after the completion of his services, provided in part: “The compensa*tion of the special counsel, together with the necessary traveling or other expenses, shall be paid out of the funds appropriated to the use of such state hoard, commission, body or official.” The affidavit of Charles Kappas presented hy the attorneys for the defendant shows that there was appropriated for the use of the Hudson County Board of Taxation in the 1944 budget a total sum of $49,000. If it be a fact that this amount will be inadequate to meet all the obligations for 1944, it cannot defeat the plaintiff’s right of recovery if his claim is otherwise valid. If the plaintiff’s claim was not foreseen at the time of the adoption of the budget or if adequate provision was not made in the budget for this purpose, an emergency appropriation might be made after judgment is entered, R. S. 40:3—31; N. J. 8. A. 40:3-31. Whether an emergency appropriation is made or not, the amount will have to be provided in next year’s budget, R. S. 40:3-31 and B. 8. 40:3—31 (e), (/); N. J. S. A. 40:3-31 and N. J. 8. A. 40:3—31 (e), (f). In either event the lack of an appropriation will not defeat the plaintiff’s right of recovery in this suit. Therefore, this separate defense is frivolous and will he stricken.

The second, third, fourth and fifth separate defenses will be considered together. They allege that the attorney-general had no jurisdiction and no power to appoint the plaintiff as counsel and as special assistant attorney-general to represent the Hudson County Board of Taxation. His jurisdiction and power were derived from B. 8. 53 .T7-9, now repealed, which provided in part: “The attorney-general may, upon the request of any state board, commission, body or official heretofore or hereafter created, appoint special counsel to represent them in his name, either in an advisory capacity or in suits, actions and proceedings of any kind that may he brought by, for or against them, and in conjunction with such state board, commission, body or official, fix the compensation of such special counsel.”

In orde^ to determine whether this statute is applicable it is necessary first to inquire whether the Hndson County Board of Taxation is a state hoard.

The Hudson County Board of Taxation was created hy R. S. 54:3—1; N. J. S. A. 54:3—1, which continued the several county boards of taxation created and established, &c., by Pamph. L. 1906, ch. 120, p. 210. The latter statute is a supplement to an earlier one entitled “An act for the assessment and collection of taxes” approved April 8th, 1903 (Pamph. L. 1903, ch. 208, p. 394) and established county-boards of taxation as a part of the taxing system of the state and directed them to “secure the taxation of all property in the various counties of this state at its true value, in order that all property, except such as shall be exempt by law, shall bear its full, equal and just share of taxes.” Pamph. L. 1906, ch. 120, p. 211, ¶ 2; R. S. 54:3-13; N. J. S. A. 54:3-13. Obviousty, this duty, imposed upon county boards of taxation, is not only for the benefit of the county in which the board serves but also for the entire state. The proper performance of its duties concerns every property owner in the state, for if any county board fails in its duty as outlined in the statute it would cast an unjust burden of taxation on owners of property in every other county.

The statute among other things provides for the appointment of members of county boards by the Governor by and with the advice and consent of the Senate, Pamph. L. 1906, ch. 120, p. 210, ¶ 1; R. S. 54:3-2; N. J. S. A. 54:3-2. It also provides that the salaries of the members of the boards shall be paid by the treasurer of the State of New Jersey upon warrants drawn by the comptroller. Pamph. L. 1906, ch. 120, p. 211; R. S. 54:3-6; N. J. 8. A. 54:3-6. The statute further provides for dismissal of a member of a county board of taxation by the Governor and appointment of a successor by the Governor in ease of willful or intentional failure to comply with the constitution and laws of this state relating to the assessment and collection of taxes. Pamph. L. 1906, ch. 120, p. 217, 12; R. S. 54:3-28; N. J. S. A. 54:3-28. All of the foregoing provisions indicate that a county board of taxation is a part of the general system of taxation of the entire state and, therefore, is a state board.

The following are some of the cases in which certain officers and boards, although their duties are restricted to a particular area of the state, usually a county, like the Hudson County Board of Taxation, have been held to be state officers or state agencies: Karp v. High Point Park Commission, 131 N. J. Eq. 249; 24 Atl. Rep. (2d) 860 (involving a park board governing a section of Sussex County); State, ex rel. Police Commissioners of Jersey City v. Pritchard, 36 N. J. L. 101, 118 (relating to a board of police commissioners); State v. Jefferson, 90 Id. 507; 101 Atl. Rep. 569 (county prosecutor); Goldberger v. City of Perth Amboy, 16 N. J. Mis. R. 84; 197 Atl. Rep. 267 (District Court judge); Wilson v. District Court, 93 N. J. L. 103; 107 Atl. Rep. 589; affirmed, 95 N. J. L. 265; 111 Atl. Rep. 927 (District Court clerk).

In application of Hudson County Board of Taxation, 128 N. J. L. 574; 27 Atl. Rep. (2d) 643, 647, Mr. Justice Bodine referred to the members of this board as “the duly commissioned officers of the state” and as “those who hold the state’s warrant of office.”

The affidavit of Leo Eosenblum, which is undisputed by the affidavits submitted on behalf of the defendant, states that all the members of the Hudson County Board of Taxation requested of the Governor of the State of New Jersey the aid of a lav/ officer of the state to enable the said board of taxation to obtain possession of the offices and records of said board; that the Governor then requested the Attorney-General of the State of New Jersey to appoint a special assistant as special counsel to said board. This in my opinion was a sufficient request of said board.

Defendant’s attorney, however, lays stress upon the fact that no formal resolution was adopted and made a part of its minutes by the Hudson County Board of Taxation requesting the attorney-general to appoint special counsel to represent them. The statute does not specifically require that the request be made by a formal resolution. If it did, the absence of such a resolution in this case was cured by the later formal resolutions adopted May 15th, 1944, by the board when the amounts of compensation and expenses were fixed. Frank v. Board of Education of Jersey City, 90 N. J. L. 273; 100 Atl. Rep. 211; Mercer County v. Tobish, 97 N. J. L. 439; 117 Atl. Rep. 392; Ballagh Really Co., Inc., v. Borough of Dumont, 111 N. J. L. 32; 166 Atl. Rep. 491; Potter v. Borough of Metuchen, 108 N. J. L. 447; 155 Atl. Rep. 369; Smathers v. Board of Chosen Freeholders of Atlantic County, 113 N. J. L. 281; 174 Atl. Rep. 336.

The attorney-general, upon the request of this state board, had the power and jurisdiction, under R. S. 52:17-9, to appoint plaintiff his assistant to act as special counsel and hence separate defenses 2, 3, 4 and 5 are sham and will be stricken.

The sixth separate defense alleges that the services rendered by the plaintiff, if any there were, were not completed within the time prescribed by the statute in such cases made and provided. Evidently the defendant, in pleading this defense, refers to the last sentence in R. S. 52:17—9 which provides “The appointment shall continue during the pleasure of the attorney-general making the appointment, but in no ease to extend beyond the term for which said attorney-general is commissioned.” The affidavit of Leo Bosenblum, which is undisputed, annexed to plaintiff’s notice of motion to strike the answer, shows that plaintiff’s services were completed on August 5th, 1942, when the peremptory writ of mandamus was allowed and copies of it served by the plaintiff upon the several persons affected by it. At the time when these services were completed, August 5th, 1942, the term of the attorney-general making the appointment had not expired. Therefore, the sixth separate defense is sham and will be stricken.

The seventh separate defense alleges that the attorney-general and the Hudson County Board of Taxation, in conjunction with each other, did not fix the compensation of the plaintiff for the services allegedly rendered by him, if any there were, in accordance with the terms and conditions in the statutes. The affidavits of Leo Bosenblum, Michael Y. Donovan and John Warren contain facts which are undisputed by the affidavits submitted by the defendant, showing that Attorney-General Walter D. Yan Biper, who succeeded Attorney-General David T. Wilentz, in conjunction with the Hudson County Board of Taxation fixed the compensation of the plaintiff. Hence the seventh separate defense is sham and will be stricken.

The eighth separate defense has been covered by me in considering the second, third, fourth and fifth separate defenses when I pointed out that the members of the Hudson County Board of Taxation requested of the Governor of the State of New Jersey to appoint a special assistant as special the Governor then requested the Attorney-General of the State of New Jersey to appoint a special assistant as special counsel to said board. This in my opinion was a sufficient request of said board. Henee this defense is sham and will be stricken.

The ninth separate defense was covered above in passing upon the seventh separate defense and for the same reason is sham and will be stricken.

The tenth separate defense alleges that the attorney-general, who allegedly fixed the compensation of the plaintiff, in conjunction with the Hudson County Board of Taxation, had no power so to do. The defendant bases his argument to sustain this defense upon the part of the statute which states (B. S. 52:17-9): “The appointment shall continue during the pleasure of the attorney-general making the appointment, but in no case to extend beyond the term for which said attorney-general is commissioned.” This obviously applies only to the appointment and the term for which it is to continue but does not affect the obligation to compensate the appointee for services rendered by him and completed during that term. The object of such a provision in the statute can be easily understood for, without it, an attorney-general whose term was about to expire might appoint persons whom his successor either did not know or did not approve of but would have to accept and be responsible for, even though he did not select or appoint them. The appointment and continuance in office of the appointee might properly be personal to the attorney-general who has a certain responsibility as to the conduct of the appointee but the matter of compensation to be fixed may very properly be done by an attorney-general who did not make the appointment but whose training and experience enable him to determine the proper amount of compensation for the services rendered after he has been informed of the nature and extent of the services. In my opinion the statute does not restrict the fixing of the compensation exclusively by the attorney-general who makes the appointment but such compensation may be fixed either by him or by his successor. Otherwise the death, resignation, disability or failure of the attorney-general making the appointment would deprive one entitled to compensation for services rendered from recovering for same.

In this case the services had been completely performed by! the plaintiff before the term of Attorney-General Wilentz' expired and before the repeal of R. S. 52:17—9. (See the affidavit of Leo Bosenblum, which is not disputed.) The-only thing remaining to be done at the time of the repeal of that statute was the fixing of the compensation. There was no question as to the plaintiff’s right to compensation for the services already entirely completed. This right was a vested right of which the plaintiff could not be deprived. James v. DuBois, 16 N. J. L. 285; Town of Belvidere v. Warren Railroad Co., 34 Id. 193; O’Neil v. Mayor, &c., of City of Hoboken, 73 Id. 189; 63 Atl. Rep. 986; R. S. 1:1-15; N. J. S. A. 1:1-15.

R. S. 1:1-15; N. J. S. A. 1:1—15 provides: “Ho offense committed, and no liability, penalty or forfeiture, either civil or criminal, incurred, previous to the time of the repeal or alteration of any act or part of any act, by the enactment of the Bevised Statute or by any act heretofore or hereafter enacted, shall be discharged, released or affected by the repeal, or alteration of the statute under which such offense, liability, penalty or forfeiture was incurred, unless it is expressly declared in the act by which such repeal or alteration is effectuated, that an offense, liability, penalty or forfeiture already committed or incurred shall be thereby discharged, released or affected; and indictments, prosecutions and actions for such offenses, liabilities, penalties or forfeitures already committed or incurred shall be commenced or continued and be proceeded with in all respects as if the act or part of an act had not been repealed or altered, except that when the Bevised Statutes, or other act by which such repeal or alteration is effectuated, shall relate to mere matters of practice or mode of procedure, the proceedings had thereafter on the indictment or in the prosecution for such offenses, liabilities, penalties or forfeitures shall be in such respects as far as is practicable, in accordance with the provisions of the Bevised Statutes or such subsequent act.”

In view of the cases cited and statute R. S. 1:1—15, the repeal of R. S. 52:17-9 by R. S. 52:17A-20; N. J. S. A. 52:17A—20, the civil liability incurred in favor of the plaintiff has not been discharged, released or affected and this action .for such, liability already incurred may be commenced or continued and be proceeded with in all respects as if the act (R. S. 53:17—9) had not been repealed. This separate defense is, therefore, sham and will be stricken.

The eleventh separate defense has been considered in the discussion of the tenth defense. It is conceded that the appointment of the plaintiff as special counsel terminated under B. 8. 53:17—9 at the expiration of the term of the attorney-general making the appointment but, for the reasons stated in reference to the tenth defense, this will not defeat the plaintiff’s right to recover for services rendered before the expiration of that term. This defense is frivolous and will, therefore, be stricken.

What has been stated concerning the tenth separate defense applies to the twelfth separate defense. Consequently, this separate defense will be stricken as sham.

The thirteenth separate defense will he stricken as sham for the reasons stated for striking the second, third, fourth and fifth defenses.

The fourteenth separate defense is frivolous. It states that the alleged services rendered by the plaintiff, if any, were rendered to a state board, commission, body or official and that compensation therefor is not a proper charge against the County of Hudson. R. 8. 53:17-9 reads, in part: “The compensation of the special counsel, together with the necessary traveling or other expenses, shall be paid out of the funds appropriated to the use of such state board, commission, body or official.” The state is obligated under B. 8. 54:3-6 to pay the salaries of the members of the several county boards of taxation according to a salary schedule dependent upon the population of the respective counties. This is the only financial obligation imposed by statute upon the state with respect to county boards of taxation. To pay these salaries the state each year appropriates the necessary moneys. The funds created by such an appropriation cannot be said to be “funds appropriated to the use of such state board.” They are appropriated to pay the individual salaries of the members of the board and not for any purpose which can be described as being to the use of such state board. Funds appropriated to the use of such state board mean funds appropriated which sueh state board may use to carry on. the functions of the hoard. Funds appropriated for the salaries of the members individually are funds payable to such members individually for their own personal private use and not for the use of such members as a board.

The only statutes which authorize and direct the payment of necessary costs and expenses for the functioning of county hoards of taxation are: (1) B. 8. 54:8-8; N. J. 8. A. 54:3-8 which directs that the salary of the secretary and compensation to its other clerical assistants shall he paid by the county treasurer on warrants approved by the president of the board; (2) B. 8. 54:3—29; N. J. 8. A. 54:3-29 which directs that “the board of chosen freeholders of each county shall provide and furnish suitable offices for the transaction of the business of the county board of taxation, and also provide a proper place for keeping safely the tax duplicates and papers of the board and shall supply such books, stationery, fuel and supplies as may be necessary; (3) B. 8. 54:3-30; N. J. 8. A. 54:3-30 which directs that “In counties having more than five hundred thousand inhabitants the board of chosen freeholders shall provide the county board of taxation with permanent offices for the transaction of its business and the preservation of its records. *' * and (4) B. 8. 54:3—31; N. J. 8. A. 54:3-31 which directs that “the board of chosen freeholders shall defray the actual traveling expenses of the members and secretary of the county board of taxation and shall pay the bills therefor when attested by the president and secretary thereof.”

All of the funds necessary to pay for the salary, compensation, providing and furnishing suitable offices, providing a proper place for keeping safely the tax duplicates and papers, and supplying necessary hooks, stationery, fuel and supplies, as directed to be paid by the aforesaid statutory provisions, axe funds appropriated to' the use of the county hoard of taxation. These are the only funds provided by statute to be appropriated to the use of the county board of taxation. Hence it must have been these funds out of which the legislature intended in B. 8. 52:11?—9 the compensation of the special counsel together with the necessary traveling or other expenses, shall be paid.

The affidavit of Charles Kappas, submitted on behalf of the defendant shows that the County of Hudson appropriated funds for the use of the Hudson County Board of Taxation in the 1944 budget amounting altogether to $49,000. These funds are chargeable with the payment of plaintiff’s compensation and costs. If the funds are not presently sufficient to pay plaintiff’s claim, the necessary amount can be provided through the means hereinbefore stated after judgment has been entered.

The fifteenth separate defense is frivolous for the reasons stated in my discussion of the first separate defense. The affidavits of Michael Y. Donovan, submitted by the plaintiff, and Charles Kappas, submitted by the defendant, state that there are sufficient funds on hand in the budget appropriation of 1944 to pay plaintiff’s claim. If by this defense it is meant that these funds are insufficient to pay both plaintiff’s claim and the permanent employees of the Hudson County Board of Taxation for their salaries for the balance of the year 1944, this will not defeat plaintiff’s right to recover a judgment. The defendant has the legal means after recovery of judgment by the plaintiff to procure the funds to pay the judgment.

The sixteenth separate defense is sliam. The affidavits of Leo Kosenblum, Michael Y. Donovan and John Warren state sufficient facts, which are not disputed by the affidavits submitted on behalf of the defendant, to prove that the amount for which plaintiff sues is due and owing from the defendant to the plaintiff. Defendant’s affidavits state that no formal resolution was adopted by the Hudson County Board of Taxation requesting the attorney-general to appoint the plaintiff as special counsel but that a formal resolution was adopted by said board authorizing the president of the board to have prepared a proper testimonial under the official seal of the board and subscribed by its members evidencing the gratitude and appreciation of the board and its members to the plaintiff for the plaintiff’s splendid service which resolution stated “that Judge Warren rendered such outstanding legal service without compensation.”

As to the necessity of a formal resolution to be adopted by the county tax board requesting the appointment of the plaintiff as its special counsel, I have decided this adversely to the defendant in passing upon the second, third, fourth and fifth separate defenses. In addition to the reasons stated, the adoption or failure to adopt such a resolution cannot be inquired into in this suit. The plaintiff’s right of recovery is governed by R. S. 52:17—9 which provides in part that “The attorney-general may * * * appoint * * * and in conjunction with such state board, * * *, fix the compensation of such special counsel.” The affidavits filed on behalf of the plaintiff, which are undisputed as to the facts stated therein, leave no doubt that the plaintiff performed the services as special counsel to the Hudson County Board of Taxation as alleged in the complaint; the procedure for fixing the compensation as outlined in the statute was followed. The action of the attorney-general in conjunction with the Hudson County Board of Taxation in fixing the compensation is conclusive and upon the presentation of the claim therefor, the board of chosen freeholders of the County of Hudson should have paid the same. State, ex rel. Lindabury v. Board of Chosen Freeholders, County of Ocean, 47 N. J. L. 417; 1 Atl. Rep. 701; Van Emburgh v. Freeholders of Bergen, 87 N. J. L. 637; 94 Atl. Rep. 586.

Defendant contends that the resolution adopted by the Hudson County Board of Taxation authorizing the preparation of a testimonial for the plaintiff is evidential to prove that plaintiff’s services were rendered without expectation of compensation. This resolution was adopted by the board in the absence of the plaintiff and is not binding on him. At best it is a self serving declaration. It is not evidential of the facts contained in it any more than a letter written by one person to another not in the course of correspondence is an admission by the person receiving the letter of the truth of the facts stated in the letter. State (Hand, Prosecutor) v. Howell, 61 N. J. L. 142; 38 Atl. Rep. 748; affirmed, 61 N. J. L. 694; 43 Atl. Rep. 1098; State v. MacFarland, 83 N. J. L. 474; 83 Atl. Rep. 993; Fritz v. Pennsylvania Fire Insurance Co., 85 N. J. L. 171; 88 Atl. Rep. 1065; Fenning Dornbusch & Co. v. Greenfield, 107 N. J. L. 272; 153 Atl. Rep. 576; Cartan v. Cartan, 93 N. J. Eq. 175, 181; 115 Atl. Rep. 353.

An order striking the answer in its entirety may be presented.


source: Caselaw Access Project

author: Bubling, C. C. J. and S. C. C.

license: Public Domain

text:
    ROSE EPSTEIN, PLAINTIFF, v. ARTHUR SCOTT BROOK, DEFENDANT.
    Decided July 20, 1945.

      For the plaintiff, Morris Bloom.

    For the defendant, Joseph H. Blumberg.

   Bubling, C. C. J. and S. C. C.

This is an action in ejectment. Motion has been made by the plaintiff to strike out the answer filed by the defendant in the above stated cause upon “the ground that the allegations contained in the same are not true in fact and sham; and on' the further ground that as to the other allegations contained in the answer, they are frivolous.” In support of the motion, affidavits were resorted to. Supreme Court rules 80 and 81; N. J. S. A. Tit. 2. Counter-affidavits were filed in support of the opposition to the motion. Supreme Court rule 80. The complaint has been drawn in accordance with rule 184 of the Supreme Court rules, and with form 13 (a) annexed to said rules relating to ejectment. The answer raised the general issue and affirmatively asserts defendant’s right to possession is a lease and his further affirmative defenses are within the following two principal categories, namely:

First—Under the laws of the State of New Jersey—The original lease under which the defendant occupied the premises is dated February 10th, 1944, for a term of one year from March 1st, 1944, at noon, to March 1st, 1945, at noon. The term expired. Bent in the amount of $50 was subsequently paid to the agent of the lessor, and accepted by the lessor for the month of March, 1945, at the monthly rate of the yearly lease which had expired and it is claimed thereby a tenancy from month to month upon the same terms and conditions was thereby created. A check for $50 was tendered for the month of April to the agent of the plaintiff but it was returned with the information that the plaintiff refused it. The lease contained a covenant and condition “not to assign this lease, or underlet said premises, or any part thereof, nor permit any person or persons to occupy the same or any part thereof without the written consent of the Lessor” and further that “if default shall be made in any of the covenants herein contained * * * then at-the option of .the Lessor this lease shall immediately cease and become void.” The defendant contends that, although a violation of this condition is admitted in that there existed a subletting during the summer season of 1944 and arrangements were made by the defendant for subletting the summer season of 1945 such violations were waived by the plaintiffs predecessor in title, with plaintiffs knowledge and that of his duly authorized agent, and by this plaintiff and his duly authorized agent. That the plaintiff is thereby estopped from asserting the breach as a cause for immediate possession. The pertinent facts surrounding the waiver of the condition of the lease are in dispute. The application of legal principles to this issue must await their timely presentation.

Second—Under the law of the United States—In the interest of national defense, federal legislation was enacted in the Emergency Price Control Act of 1043 (50 U. S. C. A. Appendix, §§ 901, et seq.), and regulations issued pursuant thereto. Pursuant to the authority conferred under 50 U. S. C. A. Appendix, § 903 (b) and (c) the Price Administrator of the United States government appointed under the Emergency Price Control Act has issued declarations setting forth the necessity for the stabilization or reduction of rents for housing accommodations in the County of Atlantic effective June 1st, 1944 (document No. 44936, Housing, Office of Price Administration, dated March 39th, 1945). Section 6(a) (3)' thereof provides as follows:

“Sec. 6. Bemoval of tenant—(a) Bestrictions on removal of tenant. So long as the tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed from any housing accommodations, by action to evict or to recover possession, by exclusion from possession, or otherwise, nor shall any person attempt such removal or exclusion from possession notwithstanding that such tenant has no lease or that his lease or other rental agreement has expired or otherwise terminated, and regardless of any contract, lease, agreement or obligation heretofore or hereafter entered into which provides for entry of judgment upon the tenant’s confession for breach of the covenants thereof or which otherwise provides contrary hereto, unless:

# sj« $ *) * *

“(3) Violating obligation of tenancy or committing nuisance. The tenant (i) has violated a substantial obligation of his tenancy, other than an obligation to pay rent, and has continued, or failed to cure, such violation after written notice by the landlord that the violation cease, or (ii) is committing or permitting a nuisance or is using or permitting a use of the housing accommodations for an immoral or illegal purpose;”

Section 6 (d)(1) and (2) provide as follows:

“(d) Notices required—(1) Notices prior to action to remove tenant. Every notice to a tenant to vacate or surrender possession of housing accommodations shall state the ground under this section upon which the landlord relies for removal or eviction of the tenant. A written copy of such notice shall be given to the area rent office within 24 hours after the notice is given to the tenant.

“No tenant shall be removed or evicted from housing accommodations by court process or otherwise, unless at least ten days (or, where the ground for removal or eviction is nonpayment of rent, the period required by the local law, for notice prior to the commencement of an action for removal or eviction in such cases, but in no event less than three days) prior to the time specified for surrender of possession and to the commencement of any action for removal or eviction, the landlord has given written notices of the proposed removal or eviction to the tenant and to the area rent office, stating the ground under this section upon which such removal or eviction is sought and specifying the time when the tenant is required to surrender possession; provided, however, that the requirement of this sentence shall not apply to housing accommodations within the city of Baltimore, Maryland, the Northeastern New Jersey Defense-Bental Area, or the Trenton Defense Bental Area, when the ground for the removal or eviction of a tenant is non-payment of rent.

# * #. # * s{« j}r

“(2) Notices at time of commencing action to remove tenant. At the time of commencing any action to remove or evict a tenant, including an action based upon non-payment of rent, the landlord shall give written notice thereof to the area rent office stating the title of the ease, the number of the ease where that is possible, the court in which it is filed, the name and address of the tenant, and the ground under this section on which removal or eviction is sought.”

The state trial court is obliged to take judicial notice of the statute and the regulations. Milk v. Mulcahey (Supreme Court, 1943), 130 N. J. L. 325 (at p. 327); 32 Atl. Rep. (2d) 598.

No allegations of compliance are set forth in the complaint which as heretofore stated follows the suggested form 13(a) annexed to the Supreme Court rules. Ko allegations are contained in the supporting affidavits of the plaintiff of the compliance with the regulations of the Office of Price Administration hereinbefore referred to, especially the provisions of section 6(d)(1) requiring a copy of the landlord’s written notice to the tenant to surrender the premises to be given to the area rent office within 24 hours after the notice is given to the tenant, nor the provisions of section 6(d)(2) requiring notice of institution of suit to be given by the landlord to the area rent office. The purport and extent of these provisions, however, seem to be ministerial and to bring home notice to the area rent office of the pendency of the controversy. In this ease it is admitted in the affidavit of Joseph E. Bobertson, Esq., area rent attorney for the Atlantic County Defense Bental Area, and offered by the defendant, that actual notice to that effect exists.

It is denied by the defendant that he continued or failed to cure violation of a substantial obligation of his tenancy, after notiee by the landlord required by section 6 (a) (3). It is affirmatively alleged by the defendant that he never received notice from the plaintiff complying with the Office of Price Administration regulations (paragraph 6, affidavit of defendant and paragraph 11, affidavit of Lillian Brooks).

The plaintiff asserts compliance with this particular section in the form of a letter dated May 19th, 1945, written by her attorney Morris Bloom, Esq. No allegations are contained in her affidavit (paragraph 9, page 3) of proof of receipt of the notice by the defendant. Even if the presumption of receipt by the addressee be given to a duly posted letter (Kruger v. Brown (Supreme Court, 1910), 79 N. J. L. 418 (at p. 420); 75 Atl. Rep. 171), is resorted to, the positive affidavit of and. denial of receipt by the defendant raises an issue of faet. Further it is asserted by the defendant that as a matter of law within the meaning of the regulations no substantial obligation of-his tenancy has been violated has been conclusively established in the present posture of facts resulting from the affidavits and counter-affidavits. Since the facts in these respects are in dispute, therefore until the facts are established surrounding the subject of subletting and waiver of covenant against subletting, the application of the legal principles pertinent to this category must await their timely presentation.

Conclusion:.

It has repeatedly been stated that the court will not try the ease on affidavits. It is only where the matters set up in the affidavits submitted on the part of the plaintiff, on a motion such as this, are not controverted, and demonstrate that the answer is sham, and is without factual support that the court is justified in granting the motion. Louis Kamm, Inc., v. Flink (Court of Errors and Appeals, 1934), 113 N. J. L. 582 (at p. 596); 175 Atl. Rep. 62. The power to strike out a pleading must be exercised with the greatest care and where falsity is alleged it must appear clearly and palpably so. Goldin v. Universal Indemnity Insurance Co. (Court of Errors and Appeals, 1936); 117 N. J. L. 192; 187 Atl. Rep. 163; Eday Fabrics, Inc., v. Seymour Dress Co., Inc. (Court of Errors and Appeals, 1935), 116 N. J. L. 251; 183 Atl. Rep. 167; Jaeger v. Naef (Supreme Court, 1933), 112 N. J. L. 417; 171 Atl. Rep. 166; Torricelli v. Sebastini (Supreme Court, 1933), 112 N. J. L. 458; 171 Atl. Rep. 526.

The motion is denied. Appropriate rule may be presented. An application may be made after issue joined and notice of trial filed to accelerate the trial of the cause.


author: Leyden, ¡3. C. G.

text:
    JOHN F. KIETRYS AND MARY H. KIETRYS, PLAINTIFFS, v. GEORGE W. CREGAR, DEFENDANT.
    Decided August 30, 1945.
    Jbr the plaintiffs, Irving Young elson.

    Kor tiie defendant, William T. Long.

   Leyden, ¡3. C. G.

The motion is to strike the answer, separate defenses and counter-claim as sham and insufficient in law.

Cregar, the defendant, sold his house and lot to Kietrys, pursuant to the covenants and agreements contained in a contract of sale made the 25th day of September, 1944. The contract provided that the defendant, in consideration of $8,500, would convey the premises to the plaintiff by deed of warranty, free of all encumbrances, on or before the 1st day of November, 1944, and further that Kietrys “may enter into and upon the said land and premises on the 1st day of November, nest ensuing the date hereof, and from thence take the Tents, issues and profits to his or their use, but provided, the said George W. Cregar shall occupy the premises without charge until November 1st, 1944, and may further occupy the premises for the month of November following and pay the sum of $30 per month therefore.”

The deed was delivered and received on November 4th, 1944, and Cregar continued in possession, paying the required $30 for the month of November. He did not vacate on December 1st, 1944, but remained in possession after a demand and' written notice for the delivery of possession was made upon him. Whereupon a suit for unlawful detainer was instituted against him in the First Judicial District Court of Morris County, and it resulted in a judgment of restitution with trebled costs. He vacated the premises on February 15th, 1945, and paid the taxed costs on March 10th, 1945.

The present action was instituted by Kietrys. He seeks, as damages, for “the deliberate and malicious conduct and wanton disregard of plaintiff’s rights as aforesaid by defendant,” the sums of money he alleges he was obliged to expend such as taxes, water and insurance for two and one-half months from December 1st, 1944, to February 15th, 1945; rent paid by him for other premises for same period; interest on $8,500 at six per cent, for two and one-half months, and legal fees. Apropos the measure of damage, see Wheaton v. Collins, 90 N. J. L. 29; 100 Atl. Rep. 157; affirmed, 91 N. J. L. 236; 103 Atl. Rep. 201. Punitive damages are sought for “the deliberate, malicious and wanton conduct on the part of the defendant in refusing to vacate and surrender the lands and premises, pursuant to the terms of the said contract of sale, * *

The answer denies the unlawful detainer and sets up four separate defenses. The first and second substantially allege a tenancy arising out of the contract of sale and a parol agreement entered into on or about December 7th whereby the plaintiff let and rented the premises to the defendant until the spring of 1945 at a monthly rental of $30 for December, $55 for January and monthly thereafter until such time as the defendant could obtain another place in which to live; that the plaintiff accepted the $30 as rent for the month of December but refused the sums offered as rent thereafter. The third defense is that the plaintiff’s testimony was false and malicious and the proceedings for unlawful detainer were in violation of the statute. The fourth challenges the jurisdiction of the District Court over the subject-matter of the action therein.

The counter-claim is difficult to interpret. It alleges the contract of sale and a parol agreement between the parties whereby the plaintiff rented to the defendant the described premises until the spring of 1945, and in consideration therefor the defendant agreed to pay $30 for the month of December, 1944, and $55 per month thereafter until he should remove therefrom. It alleges the payment of $30 for the month of December to the plaintiff and the offer to pay for the month of January, but nevertheless the plaintiff “thereupon made and executed false and malicious complaint to commence an action for unlawful detainer which they instituted in the District Court of the First Judicial District of the County of Morris.” It further alleges that on the 8th day of February, 1945, the District Court entered a judgment of restitution against the defendant “which was in flagrant violation of the statute in such ease made and provided, and in total disregard of the fact;” “the testimony of the plaintiffs offered in said cause was false” and “the action of the plaintiffs in instituting the said action * * * was reckless and malicious and intended to harass and annoy defendant.”

The counter-claimant seeks “as result of said malicious action of plaintiffs” the sums of money he was obliged to expend to defend himself “from the persecution of plaintiffs,” and alleges he was compelled to remove from said premises within seven days. Punitive damages are likewise sought.

In support of the motion, plaintiff argues that the relation of landlord and tenant did not exist between the parties and that the matters sought to he litigated by the answer, defenses and counter-claim have already been adjudicated adversely to defendant in the District Court proceeding. The contention is not persuasive. The agreement with reference to possession by defendant contained in the contract of sale was distinct, collateral and independent. By it defendant was to occupy the premises of the plaintiff, with his permission and in recognition of Ms title, for the definite term of one month' at a rental of $30. The relation of landlord and tenant was thus created between them even though it was but for the month. Compare Nestel v. Schmid, 39 N. J. L. 686; Moore v. Moore, 41 Id. 515; Moore v. Smith, 56 Id. 446; 29 Atl. Rep. 159. The defendant held over and was dispossessed'' by the judgment of the District Court. The determination in dispossession so far as it affected the rights of either the landlord or the tenant was a decision pro hac vice—“for that occasion”—and nothing more. Either of them may, in any subsequent legal proceeding, deny or disapprove the facts upon which such decision was based. McWilliams v. King & Phillips, 32 N. J. L. 21; Hopper & Broomhead v. Chamberlain, 34 Id. 220. The legislature, in providing for summary proceedings by a landlord to obtain speedily the right to the immediate possession of his property, recognized that the landlord might be wrong and ordained that he shall remain liable in an action at law in the nature of an action of trespass for any unlawful proceeding under the act. McGann v. LaBrecque Co., 91 N. J. Eq. 307; 107 Atl. Rep. 501; R. S. 2:58-26; N. J. S. A. 2:58-26, and its companion provisions under District Courts, landlord and tenant R. S. 2:32—273; N. J. S. A. 2:32-273, and forcible entry and detainer R. S. 2:32—258; N. J. S. A. 2:32—258. The District Court judgment of restitution is, therefore, not res judicata and the answer and separate defenses, raising the unlawfulness of the dispossess proceeding are sufficient and will be permitted to stand to the end that the fact questions raised may be determined by a jury.

The counter-claim gives more pause. It sounds in malicious prosecution. If this is the theory of defendant, it is insufficient for failure to allege a favorable determination of the District Court proceedings. Ash v. Cohen, 119 N. J. L. 54; 194 Atl. Rep. 174. Perjury, of itself, will not give rise to a civil action for damages. The remedy is by indictment and criminal prosecution. Kantor v. Kessler, 132 N. J. L. 336; 40 Atl. Rep. (2d) 607.

The statute, R. S. 2:58-26; N. J. S. A. 2:58-26, gives the remedy for an unlawful proceeding as an action at law in the nature of an action of trespass. Our Practice Act and court rules have not abolished the essential and differentiating rules applicable to pleading as established at common law. Ward v. Huff, 94 N. J. L. 81; 109 Atl. Rep. 287; Taylor v. Brewer, 94 N. J. L. 392; 110 Atl. Rep. 693; Wm. H. Jamouneau Co. v. Wetherill, 98 N. J. L. 80; 118 Atl. Rep. 707. It follows, if the defendant’s theory is that of trespass, he must plead the wrongful act on the part of the plaintiff, viz., the force essential to trespass. This he has not done with clarity. His removal by virtue of a warrant to dispossess is the act which becomes the basis of an action of trespass or in the nature thereof. To maintain the action it must be shown that the tenant was removed by a warrant to dispossess, but he need not wait for the exercise of actual force. Coe v. Haines, 44 N. J. L. 134.

The counter-claim is insufficient. The motion as to it is granted with leave, however, to the defendant to plead over, if he deems it advisable, within twenty days.


author: Boberson, C. P. J.

text:
    Hudson County Court of Common Pleas.
    EUGENE T. SHARKEY, PLAINTIFF, v. COUNTY OF HUDSON, DEFENDANT.
    Decided January 3, 1945.

      Eugene T. Bharkey, pro se.

    For the defendant, J. Emil Walscheid, county counsel, and Thomas J. Armstrong, assistant county counsel.
   Boberson, C. P. J.

The plaintiff, an attorney and counselor-at-law of this state, sues to recover the sum of $1,500 for legal services rendered by him as special assistant attorney-general appointed by the Attorney-General of the State of New Jersey to represent the Hudson County Board of Taxation as special counsel in a certiorari suit brought against that board by one Harry W. Yanderbaeh. The appointment was made and the amount of compensation fixed in accordance with the provisions of B. 8. 52:17-9; N. J. 8. A. 52:17-9, now repealed. Plaintiff filed verified claims with the defendant for said amount but payment was refused by defendant.

Defendant has filed an answer, the first part of which makes certain admissions and denials and puts plaintiff to his proof as to other allegations of the complaint and then alleges sixteen separate defenses.

The plaintiff now moves to strike out the answer to the complaint as sham and the separate defenses, some as sham and others as frivolous, and to enter summary final judgment.

For the reasons stated in the memorandum filed by me in the suit in this court of John Warren v. County of Hudson, 23 N. J. Mis. R. 252; - Atl. Rep. (2d) -, in which the cause of action was based upon facts similar to the facts alleged in this suit and the answer set up the same defenses as contained in the answer filed in this suit, the answer in this suit will be stricken out in its entirety.

An order may be presented.


author: Hobekson, 0. P. J.

text:
    Hudson County Court of Common Pleas.
    JOHN WARREN, PLAINTIFF, v. COUNTY OF HUDSON, DEFENDANT.
    Decided January 3, 1945.

      John Warren, pro se.

    For the defendant, J. Emil Walscheid, county counsel, and Thomas J. Armstrong, assistant county counsel.
   Hobekson, 0. P. J.

The plaintiff, an attorney and counselor-at-law of this state, sues to recover the sum of $1,500 for legal services and the sum of $34.03 for necessary expenses in connection with such legal services rendered by him as special assistant attorney-general appointed by the Attorney-General of the State of New Jersey to represent the Hudson County Board of Taxation as special counsel in a certiorari suit brought against that board by one Harry W. Yanderbach. The appointment was made and the amounts of compensation and necessary expenses were fixed in accordance with the provisions of R. S. 52:17-9; N. J. S. A. 52:17-9, now repealed. Plaintiff filed verified claims with tíre defendant for said amounts but payment was refused by defendant.

.Defendant has filed an answer, the first part of which makes certain admissions and denials and puts plaintiff to his proof as to other allegations of the complaint and then alleges sixteen separate defenses.

The plaintiff now moves to strike out the answer to the complaint as sham and the separate defenses, some as sham and others as frivolous, and to enter summary final judgment.

Por the reasons stated in the memorandum filed by me in the suit between these same parties in this court marked case No. 1, 23 N. J. Mis. R. 252; - Atl. Rep. (2d) -, in which the cause of action was based upon facts similar to those alleged in this suit and the answer set up the same defenses as contained in the answer filed in this suit, the. answer in this suit will be stricken out in its entirety.

An order may be presented.


author: Btteling, C. C. J. and S. C. C.

text:
    LOUIS MARKOWITZ, PLAINTIFF, v. LIEBERT AND OBERT, A CORPORATION OF THE STATE OF PENNSYLVANIA, AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY, AND SAMUEL FRANKENSTEIN, TRADING AS CITY BEVERAGE CO., DEFENDANTS JOINTLY AND SEVERALLY.
    Decided August 23, 1945.

      For the plaintiff, 8. Paul Ridgway.

    For the defendant Liebert and Obert, a corporation of the State of Pennsylvania, authorized to do business in the State of Flew Jersey, Lloyd, Horn & Pershie.

   Btteling, C. C. J. and S. C. C.

The plaintiff instituted an ’ action at law, sounding in tort, based upon the negligence of the two defendants against whom the suit has been brought jointly and in the alternative. It is alleged by the plaintiff that he went to the place of business of the defendant Samuel Frankinstein, trading as City Beverage Co., for the purpose of purchasing a case of defendant’s Liebert and Obert beer known under the trade name of Cooper’s Beer, and that while on the premises of the said defendant Samuel Frankinstein, in the City of Atlantic City, County of Atlantic and State of Flew Jersey, in the act of bending over for the purpose of picking up said case, one of the bottles exploded, causing injury to him. It is further alleged that the defendant, Liebert and Obert, was engaged in the business of manufacturing, distributing, selling and transporting beers and beverages and that the defendant Samuel Frankinstein was a distributor or wholesale dealer for the sale of beers and beverages of said defendant Liebert and Obert. The gist of the action is laid in paragraphs 8, 9 and 10 of the complaint as follows:

“8. The said defendant, Liebert and Obert, it’s servants and agents, were careless and negligent in that:

“(a) They carelessly brewed, manufactured, bottled, distributed and transported said bottle of beer.

“(b) Said defendant, its servants and agents, failed to use reasonable care in pouring, preparing and manufacturing said beer.

“(c) Said defendant failed to use reasonable care to see that said bottle was strong enough to withstand the pressure of gas created by said beer and beverage.

“(d) Said defendant, its agents and servants, prepared said beer in a dangerous, defective and unsafe condition.

“(e) Said defendant failed to>use reasonable care to see that said beer and beverage was properly poured in said bottle and also to see that said gas in said beer or beverage did not break said bottle.

“(f) Said defendant, its servants and agents, carelessly and negligently brewed and manufactured said beer so as to cause same to be highly overcharged and to explode.

“(g) Said defendant, its agents and servants, was careless and negligent in transporting and delivering said beer to defendant, Samuel Frankinstein.

“(h) Said defendant was otherwise careless and negligent in the brewing, manufacturing, distributing, selling and transporting said beer.

“9. The defendant Samuel Frankinstein, trading as City Beverage Co., his agents and servants was negligent in that:

“(a) Said defendant carelessly and negligently handled said bottle containing said beer so as to weaken said bottle.

“(b) Carelessly stored and exposed said beer.

“(c) Said defendant was otherwise careless and negligent in the handling, storing, transporting and delivering said beer.

“10. Said bottle of beer was delivered to defendant Samuel Frankinstein by defendant Liebert and Obert, its servants and agents, and that after said bottle of beer was brewed and manufactured it was handled only by defendant Liebert and Obert and defendant Samuel Frankinstein, trading as City Beverage Co.”

Motion has been made by the defendant Liebert and Obert for an order compelling the plaintiff to comply with the demand for particulars served herein and more particularly to compel the plaintiff to submit answers to questions 12 to 19 as set forth in said demand for particulars.

Demands Eos. 12 to 19 are as follows:

“12. State in what respect or respects this defendant was careless in the brewing, manufacturing, bottling, distributing and transportation of said bottled beer as charged in Paragraph 8 (a) of the Complaint.

“13. State in what respect or respects this defendant, its servants and agents, failed to use reasonable care in pouring, preparing and manufacturing said beer as charged in Paragraph 8 (b) of said Complaint.

“14. State in what respect or respects this defendant failed to use reasonable care to see that said bottle was strong enough to withstand the pressure of gas created by said beer and beverage as charged in Paragraph 8 (c) of said Complaint.

“15. State in what respect or respects this defendant, its agents and servants, prepared said beer in a dangerous, defective and unsafe condition as charged in Paragraph 8 (d) of said complaint.

“16. State in what respect or respects this defendant failed to use reasonable care to see that said beer and beverage was properly poured in said bottle and also to see that said gas in said beer or beverage did not break said bottle as charged in Paragraph 8 (e) of said Complaint.

“17. State in what respect or respects this defendant, its servants and agents, carelessly and negligently brewed and manufactured said beer so as to cause same to be highly overcharged and to explode as charged in Paragraph 8 (f) of said Complaint.

“18. State in what respect or respects this defendant, its agents and servants, were careless and negligent in transporting and delivering said, beer to defendant, Samuel Prankinstein, as charged in Paragraph 8 (g) of said Complaint.

“19. State in what respect or respects this defendant was otherwise careless mid negligent in the brewing, manufacturing, distributing, selling and transporting said beer as charged in Paragraph 8 (h) of said Complaint.”

The answers which are objected to in said answers to said demand for particulars are as follows:

“12. Fot proper question because nlaintid relies upon a , doctrine of ras ipsa loquitw.

“13. Fot proper question.

“14. Fot proper question.

“15. Fot proper question.

“16. Fot proper question.

“17. Fot proper question.

“18. Fot proper question.

“19. Fot proper question.

“Questions Fo. 12 to Fo. 19 inclusive are not proper questions because the case will be tried on the theory of res ipsa loquitur and because said evidence is in the possession of defendant.”

In Stevenson on the Law of Negligence in New Jersey (1945) at p. 308, it is stated:

“The doctrine of res ipsa loquitur is a rule of evidence that is designed to secure a just consideration of cases involving injury nr damage to those who suffer them through unusual or extraordinary circumstances. It comes into application where the court finds that due to the fact that knowledge concerning the cause of accident is peculiarly within the possession of the defendant, the plaintiff is unable to produce proof of the specific act of negligence involved.”

In the ease of Cicero v. Nelson Transportation Co., Inc. (Supreme Court, 1943), 129 N. J. L. 493 (at p. 495); 30 Atl. Rep. (2d) 67, 69, it was held:

“This rule as applied to actions of negligence, is founded on the hypotheses that the instrumentality producing the injury was under the management or control of the defendant, and that, in the general experience of mankind, the event producing the injury does not happen unless the person in control has failed to exercise due care. In such circumstances, negligence may reasonably be inferred, and therefore the occurrence itself affords prima facie evidence of a want of due care. The maxim represents an exception to the general rule that the onus of proof of the negligence alleged is in the first instance on the plaintiff; and it embraces only those cases where the occurrence bespeaks the defendant’s negligence, i. e., where the natural inference from the fact of the happening of the event is that it ensued from defendant’s failure to use due care.”

In the language of Mr. Justice Pitney, the meaning of res ipsa loquitur is: “that the facts of the occurrence warrant the inference of negligence not that they compel such an inference ; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, -but it is evidence to he weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal not necessarily that they require it; that they made a case to be decided by the jury not that they forestall the verdict. Bes ipsa loquMur where it applies does not convert the defendant’s general issue into an affirmative defense. When all evidence is in, the question for the jury is whether the preponderance is with. the plaintiff.” McKelvey on Evidence (5th ed.) 139, citing from Sweeney v. Erving, 228 U. S. 233 (at p. 240); 33 S. Ct. 416.

The determination of this motion hinges partially upon the answer to the posed question, “Can a plaintiff who has alleged specific acts or omissions of the defendant as the proximate-causes of the mishap, invoke at the trial the doctrine of res ipsa loquitur ?"

In Shain on Res Ipsa Loquitur (1945) at p. 486, it is-stated:

“Where a ease comes under the doctrine of res ipsa loquitur, it would seem that general allegations -by themselves would be sufficient and that plaintiff should not be required to allege specific acts of negligence, since under a res ipsa situation he is not even supposed to have any knowledge of such specific acts. ‘However, under the (new) system of code pleading,, requiring a plain and concise statement of the facts constituting plaintiff’s cause of action, it has been held that a general averment of negligence, if objected to by special demurrer, can not be aided by the res ipsa loquitur doctrine, and, even in such cases, plaintiff must plead the particular acts of negligence which he claims to have caused the injury.’ It has also been held that the doctrine will not apply unless plain-. tiff has alleged and proved that the act or omission which caused the injury was one that a reasonably prudent man, in defendant’s place, would have foreseen might cause the injury. This confusion is due to the fact that though ‘generally speaking the doctrine of res ipsa loquitur is a rule of evidence and ordinarily has no application to pleading,’ sometimes it is treated as a rule of pleading with disregard of the actual purpose and basis of the doctrine.”

New Jersey eases seem to incline toward the rule that if the ease is a proper one for the application of the doctrine, the plaintiff, although he has pleaded the definite cause of the accident, does not thereby waive the right to rely upon the doctrine. Trenton Passenger Railway Co. v. Cooper (Court of Errors and Appeals, 1897), 60 N. J. L. 219 (at p. 220); 37 All. Rep. 730; Rapp v. Butler-Newark Bus Line (Supreme Court, 1927), 103 N. J. L. 509 (at p. 512); 138 Atl. Rep. 377; affirmed (Court of Errors and Appeals, 1927), 104 N. J. L. 444; 140 Atl. Rep. 921; Hochreulner v. Pfenninger (Court of Errors and Appeals, 1934), 113 N. J. L. 317; 174 Atl. Rep. 513; Cleary v. Camden (Supreme Court, 1937), 118 N. J. L. 215 (at p. 221); 192 Atl. Rep. 29; affirmed (Court of Errors and Appeals, 1937), 119 N. J. L. 387; 196 Atl. Rep. 455.

Thompson in his work on Negligence says: “The plaintiff in an action lor personal injuries is not deprived of his right to rely upon the doctrine of res ipsa loquitur by reason of having averred the particular act of negligence complained of, where such act is the one which legal inference tends to establish.” 6 Thomp. Neg., § 7643.

In the above cited case of Rapp v. Butler-Newark Bus Line, 103 N. J. L. 509; 138 Atl. Rep. 378, it is stated:

“It is argued, however, that the nonsuit should have been granted because the accident did not itself speak negligence on tile part of the defendant; and, further, that the doctrine of res ipsa loquitur had been abandoned by the plaintiffs by alleging in their bill of particulars specific acts of negligence. We think these contentions are without merit. As to the last contention: The bill of particulars was furnished to the defendant in compliance with its demand for such specification. The theory that a defendant, by the making of such a demand, can deprive a plaintiff of the protection afforded by the doctrine of res ipsa loquitur seems to us to be absolutely without any basis to rest upon. If it be sound, then counsel has discovered a method of entirely abrogating this doctrine; for it can readily be imagined that in all actions of this kind hereafter brought the course of procedure adopted in the present case would be followed.”

The point has been raised by the defendant in support of its right to the particulars in this matter that upon the trial of the cause it may appear from the evidence that the doctrine is not applicable to it, the bottler. Prom a review of some of the pertinent eases in this state relating to negligence as to exploding bottles it would appear that there are ramifications and qualifications to the rule, for instance—Noonan v. Great Atlantic, &c., Tea Co. (Court of Errors and Appeals, 1927); 104 N. J. L. 136; 139 Atl. Rep. 9; Taylor v. Berner (Supreme Court, 1929); 7 N. J. Mis. R. 597; 146 Atl. Rep. 674; affirmed (Court of Errors and Appeals, 1929), 106 N.J.L. 469; 150 Atl. Rep. 371; Dunn v. Hoffman Beverage Co. (Court of Errors and Appeals, 1941); 126 N. J. L. 556 : 20 Atl. Rep. (2d) 352; MacPherson v. Canada Dry Ginger Ale, Inc. (Supreme Court, 1943), 129 N. J. L. 365; 29 Atl. Rep. (2d) 868. The doctrine has been defined by what has been termed a classic definition in Spill v. Stoeckert (Court of Errors and Appeals, 1940), 125 N. J. L. 382 (at p. 384); 15 Atl. Rep. (2d) 773, 774, as follows:

‘Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. 1 Thomp. Negl., ¶15.”

From which it appears that part of the proof is requisite evidence of the exercise of due care by others in this class of cases during the period of lack of possession of the exploding bottle. MacPherson v. Canada Dry Ginger Ale, Inc. (supra); Dunn v. Hoffman Beverage Co. (supra). For instance the element of sole control is not present in the complaint but the interim negligence of the co-defendant, Samuel Frankinstein, is asserted in paragraph 9 of the complaint. Thus the rule may not be invoked or raised and the defendant may thereupon be obliged to meet the general allegation of negligent conduct as in the ordinary course (Cicero v. Nelson Transportation Co., Inc., supra) if such evidence is produced as it may be sufficient to sustain an inference that the defendant failed to exercise reasonable care. Cleary v. City of Camden (supra).

It becomes necessary to meet the merits of the application and the purpose of particulars as applied to this case. The function of a bill of particulars has been defined in the case of Hooper v. William P. Laytham & Sons Co., Inc., 125 N. J. Eq. 454 (at p. 455); 6 Atl. Rep. (2d) 204, 205, as follows:

“It is now well settled that the function of a bill of particulars is to secure a discovery of an opponent’s case with a greater degree of particularity than is disclosed by his pleadings. While it may not be employed as a means of compelling a disclosure of an adversary’s evidence, nevertheless a bill of particulars may be used for the purpose of requiring the party to whom it is directed to give information relative to his ease not only for the purpose of enabling his opponent to prepare a proper pleading in reply, but also for the purpose of limiting his own proof at the trial, as well as apprising his adversary of what is proposed to be set up to the end that the latter may properly prepare his defense thereto.”

In the application of the applicable principles enunciated as they are in the due administration of justice, to this case and to the allegations of negligence in quo modo in paragraph 8 of the complaint, it appears that the defendant has been reasonably and sufficiently apprised of the details of the negligence and the gist of the action to prepare its proper pleading and to properly prepare its defense. It should be in this ease in possession more adequately of the pertinent facts. In 45 C. J. at p. 1084, it is stated:

“It is also a well setted rule that, where the facts pertaining to the negligence are peculiarly within the knowledge of defendant and are such that plaintiff cannot be expected to know them, such facts may be alleged with less certainty and particularity than would otherwise be necessary.”

The motion is denied. Appropriate rule may be presented.


author: Silberman, D. C. J.

text:
    Second District Court of Paterson.
    LION’S HEAD LAKE, PLAINTIFF, v. BRZEZINSKI, DEFENDANT.
    Decided August 17, 1945.
    For the plaintiff, Louis J. Greenberg.
    For the defendant, Samuel Bosenfeld.

   Silberman, D. C. J.

Plaintiff corporation is the owner of a lake development. Defendant agreed in writing to purchase a tract of land for $740. She paid $100 down and was required to pay the balance and other charges by installments. Defendant defaulted in her payments and this action seeks to recover the unpaid balance of several items presently due of $270.61.

The contract is very elaborate and contains varied provisions as to use, enjoyment and occupancy but all of them are related to the maintenance of a general scheme generally contemplated in such resorts. One of the conditions is attacked and of that, more hereafter.

There is no dispute on the facts and the matter lias been submitted on a stipulation of facts made up of the allegations in the state of demand supported by briefs presented by counsel. The single question of law is raised by defendant and the entire matter rests upon its solution.

It is contended that the contract is void and against public policy because by one of its terms, the purchaser is restrained from making a sale or permitting use or occupancy to or by any person not a member of the Caucasian race; and further, that such restraint upon general alienation or occupancy is of such discriminatory character that it renders the contract illegal and void upon constitutional grounds forbidding discrimination.

It thus appears that the condition imposed is a promissory restraint upon the purchaser as contrasted with a forfeiture restraint. When defendant made the contract of purchase she was fully aware of its terms and for all that appears may have been induced by this very provision. There is no rule of law which prohibits private persons from agreeing among themselves to restrict the sale or use of property and to thus qualify the power of alienation where the state has not by its declared public policy forbidden such type of restriction. The avoidance of unpleasant racial and social relations and the stabilization of the value of land which results from the enforcement of the exclusion policy are regarded as outweighing the evils which normally result from a curtailment of the general power of alienation. “Restatement of the Law" A. L. I., Title, Property, No. 406, comment (1).

In New Jersey the legislature has clearly evidenced and forcibly declared our public policy against the elimination of discriminatory practices on many and varied subjects. At the last session it enacted a series of laws designed to effectuate that policy as respects civil rights and jury service, Pamph. L. 1945, ch. 168; N. J. S. A. 10:l-3, 10 :l-6, 10:1-8, fair employment practices, chapter 169, N. J. S. A. 18 :25-l, et seq., public works, chapter 171, N. J. S. A. 10 :2-l, schools, chapter 172, N. J. S. A. 18:14r-2, hospitals, chapter 173, N. J. S. A. 30:9-17, and employment in defense industries, chapter 174, N. J. S. A. 10:1—10, 10:1—11. But it has not yet declared that restrictions governing ownership or occupancy of private property should be forbidden or eliminated as one of the evils requiring a remedy. It may be that the elimination of all discriminatory practices against all races and of all peoples is a goal which some day may yet be attained in a democracy like ours, but until the legislature, the supreme law making power acts in the matter, it is not within the power or competence of the courts to do so. Jus dicere non jus dare.

It has long been held and supported by the weight of authority, that restrictions upon alienation or use of property imposed by agreement of the owners or assumed by covenant in a deed, which excludes a particular race or social group, are not violative of constitutional provisions against discrimination or equal protection of the laws for the reason that such constitutional prohibitions are intended as protection against arbitrary action of the legislature and not affecting the action of private parties. Meade v. Dennistone, 173 Md. 295; 196 Atl. Rep. 330; 114 A. L. R. 1227.

It is quite clear that the plan in this ease which permits alienation or occupancy by a specified race and thus excludes other races, is not against public policy, is not an unlawful restraint against general alienation and does not offend any constitutional prohibitions.

Under all the circumstances, the defense asserted is untenable and plaintiff should have judgment for the sum of $270.61 together with interest and costs. Let judgment be entered accordingly.

Bespective counsel waived notice by registered mail.


author: Del Mar, C. P. J.

text:
    Bergen County Court or Common Pleas.
    BOARD OF HEALTH OF THE BOROUGH OF EAST RUTHERFORD, PLAINTIFF-APPELLEE, v. SYDNEY LOBSENZ, DEFENDANT-APPELLANT.
    Decided August 29, 1945.
    For the plaintiff-appellee, Albert V. DJAmato.

    For the defendant-appellant, Meyer Lobsenz and John B. Merrey.

   Del Mar, C. P. J.

The above-entitled matter, the papers in which have been variously and erroneously entitled Josephine Cappadona, Plaintiff, v. Sydney Lobsenz, Defendant, and the State of New Jersey, Prosecutor, v. Sydney Lobsenz, Defendant, having come on for hearing in the presence of the above-named attorneys, the plaintiff-appellee (hereinafter called plaintiff) moved for a dismissal on the ground that the Court of Common Pleas had no jurisdiction to hear the appeal.

The defendant-appellant (hereinafter called defendant) was charged with a violation of article I of the Sanitary Code adopted by the Board of Health of the Borough of East Butherford. The penalty fixed in the code for the violation of article I is: “Not less than two dollars nor more than one hundred dollars,” to be paid as a penalty by the person violating said article. The procedure for the collection of thej penalty is provided for in R. S. 26:3-72; N. J. S. A. 26 :3-72, which includes, among other remedies, a suit of the local board before the recorder of the municipality. The' procedure provided for in the foregoing and subsequent sections of the statute is a civil suit, resulting, in case of a conviction of the defendant, in a judgment in favor of the board of health, the judgment to be collected by execution if unpaid, with a provision that the same may be docketed in the Court of Common Pleas and the penalties recovered shall be paid by the local board into the treasury of the municipality within which the local board has jurisdiction. (See R. S. 26:3—73 to R. S. 26:3-82; N. J. S. A. 26:3-73 to N. J. S. A 26 :3-82.)

There is no provision for any appeal or review nor is any mentioned in the statute, except in R. S. 26:3-77; N. J. 8. A. 26:3-77, which provides that execution shall issue against the goods, &e., of the defendant “unless an appeal is granted.” (This language is the same as that contained in Pamph. L. ' 1886, p. 289, § 23, which act was construed by the Supreme Court in Holzworth v. The Board of Health of the City of Newark, 50 N. J. L. 85; 11 Atl. Rep. 131, wherein it was decided that the aforesaid words do not give the right of appeal to the Pleas, if it did not exist without them.

To the same effect is Board of Health v. Union Common Pleas, 83 N. J. L. 392 ; 85 Atl. Rep. 217, also decided by the Supreme Court.

The defendant has referred me to various statutes, particularly R. S. 2:215—7; N. J. S. A. 2:215—7, as authorizing this appeal, none of which, however, relate to ordinances of a board of health. The cited statute was considered by me in the case of Borough of Ramsey v. Basil, 19 N. J. Mis. R. 555; 21 Atl. Rep. (2d) 860, in which I held that it did not authorize a review before me where the proceeding before the magistrate was in the nature of a civil suit. A fortiori it does not apply to a suit for a penalty brought before a recorder for an alleged violation of an ordinance of the Board of Health where the statute, as in this case, provides that the suit to collect the penalty is a civil suit.

Ho statute having been called to my attention authorizing an appeal to this court, or before me as a judge thereof, and I having found none, I hereby determine that this court, and I as a judge thereof, are without jurisdiction to hear it, and the same is on motion of the plaintiff hereby dismissed.


author: Huffy, C. P. J.

text:
    Hudson County Court of Common Pleas.
    CARL CONRAD PEARSON, PLAINTIFF, v. THE BERWIND WHITE COAL MINING COMPANY, DEFENDANT.
    Decided March 26, 1944.
    Por the plaintiff, Meehan Brothers.

    Pot the defendant, Oox & Walburg {Arthw F. Mead, of counsel).
   Huffy, C. P. J.

This matter is before me on defendant’s motion to strike the complaint.

The complaint charges that on September 24th, 1937, the plaintiff while acting in the employ of the defendant sustained an injury to his eyes; that he received medical treatment therefor by a physician selected by the defendant; that at the time of the accident the relation between the plaintiff and defendant was controlled by the provision of the Workmen’s Compensation Act of the State of New Jersey, N. J. S. A. 34:15—1, et seq., and that he was paid nine weeks of temporary compensation in accordance with such act. The complaint further charges that the defendant fraudulently represeated to the plaintiff that he did not have any permanent injury as a result of the accident and that the plaintiff, relying on these false representations, failed to file his petition with the Workmen’s Compensation Bureau until the two-year statutory period had elapsed; and that therefore, as a result of the fraud practiced upon him by the defendant, he was and is unable to recover any award for permanent, partial disability of his right eye in the Compensation Bureau. He seeks in this action to recover the amount of the award of compensation which he claims he would have received had he not been deluded by the misrepresentations of the defendant company and had filed his petition in time, in the Bureau.

The motion on behalf of the defendant to strike the complaint is based upon the following grounds:

1. The court does not have jurisdiction of the claim alleged to be set forth in the complaint.

2. The plaintiff’s sole remedy, if any, is under the Workmen’s Compensation Act of the State of New Jersey.

3. The complaint fails to state a good and legal cause of action against the defendant.

4. The complaint is sham.

Por the purpose of this motion, defendant’s first three grounds can be considered together. The plaintiff contends that he can maintain a common law action in this court for the amount of compensation that he would have received in the Workmen’s Compensation Bureau, if he had sought relief in that forum. He further charges that he would have sought such relief had he not been lulled into a sense of false security by the fraud practiced upon him by his employer, the defendant herein.

Plaintiff concedes that his proper remedy was in the Compensation Bureau and that he did not file his petition therein within the two-year period prescribed by the Compensation Act. He does not contend that this matter is in anywise an appeal from the Bureau, since original jurisdiction over claims of this kind rests exclusively therein. It is difficult to perceive how this court could properly arrive at any basis for an award of damages to the plaintiff were he to sustain his allegations of fraud and deceit.

This question seems to come squarely within the rule laid down by the Supreme Court in Racanati v. Black Diamond Stevedoring Co., Inc., 130 N. J. L. 261; 32 Atl. Rep. (2d) 578, 580, wherein the court said:

“Any award that a jury made would of necessity be based upon conjecture and surmise as to what the commission would have found the percentage of permanent disability to be. Proof of pecuniary loss is an essential element in an action grounded in deceit and lacking such proof, the action cannot be maintained, hi either fraud without damage nor damage .without fraud is sufficient to support an action for deceit. 23 Am. Jur. 772, § 20.”

The complaint herein assailed clearly shows that the plaintiff has not established any right to compensation for the accident described. It merely alleges a contingent and speculative claim.

.Thus, the plaintiff herein seeks to substitute the jurisdiction of the Common Pleas for that of the statutory tribunal created by the legislature. This court has no such power.

Because of the conclusions set forth, it is not necessary to consider the fourth ground of attack, that of sham.

The complaint fails to set out a good cause of action. The defendant’s motion to strike is granted, together with costs.


author: Ziesshteb, C. P. J.

text:
    Hudson County Court of Common Pleas.
    HARVEY DE GRAW, PETITIONER-APPELLEE, v. TODD SHIPBUILDING COMPANY, RESPONDENT-APPELLANT.
    Decided July 25, 1945.

      For the petitioner-appellee, Hein & Smith and Isadore Bahinowitz.

    For the respondent-appellant, Kalisch & Kalisch.

   Ziesshteb, C. P. J.

The above matter having come on for. hearing on appeal before me with Hein & Smith and Isadore Habinowitz as attorneys for petitioner-appellee, and Kalisch & Kalisch as attorneys for respondent-appellant, and the matte having been submitted to me for decision, and I having considered the same and reviewed the transcript and proceedings of the Workmen’s Compensation Bureau and. its judgment dated April 2d, 1945, awarding the petitioner-appellee temporary and partial permanent disability compensation, I bdo hereby find and determine as follows:

The petitioner, Harvey De Graw, was employed by the respondent, Todd Shipbuilding Company, as a steamfitter and on the day he was injured, January 20th, 1944, he was working on a ship named the Fred Morris, which was being converted from a freight ship to a naval troop ship. The entire character of the ship was being changed and the conversion required extensive plans and took about four months. The respondent had nothing to do with operating the ship, which was brought into respondent’s yard, under its own steam and by tugboats. The ship was not being repaired in the manner ■that repairs are ordinarily made to a ship which has been disabled, or which is undergoing minor repairs between trips.

The petitioner was not a member of the crew and was not employed by the owner of the ship. The Todd Shipbuilding “Company had no control whatever over the ship.

In my opinion the operation which the ship was undergoing was so extensive that the change was tantamount to the building of a new ship; and át the time the petitioner was injured it was not finished. The ship was definitely not commissioned in the condition it was in at the time and would not be until the reconversion would be completed in accordance with the plans.

The respondent denied the jurisdiction of the state compensation court, contending that the situation was controlled by and within the jurisdiction of the Longshoremen’s and Harbormen’s Act, 33 U. S. C. A., §§ 901, et seq., and therefore an admiralty case to be determined by the federal court. I do not agree with this contention because the petitioner was engaged in work on the said ship, which was in no sense maritime but which was strictly local.

The ship at the time was securely tied and fastened to the dock in a permanent manner with shore lines, electrical, welding and steam connections, and with its fuel tanks empty.

I have read the testimony and have studied and considered the voluminous briefs of counsel, which disclose that the subject has received careful and exhaustive research on their part, and I have reached the conclusion that the Workmen’s Compensation Bureau of this state had jurisdiction to hear and determine the ease. In my opinion the payment of the sum of $11' to the petitioner by the Longshoremen’s Commission does not alter the situation; the said payment in itself not conferring jurisdiction to the said commission.


author: Fielder, Y. 0.

text:
    Quigley Company, Inc., complainant, v. Asbestos Limited, Inc., defendant.
    [Decided October 8th, 1945.]

      Mr. George L. Burton (Mr. Morris Spritzer, of counsel), for the complainant.

      Mr. Max L. Bosenstem, fox the defendant.
   Fielder, Y. 0.

The bill of complaint names Asbestos Limited, Inc., a corporation, and Nathan E. Newman its president, as defendants but Newman died a little more than a year after the institution of the suit and complainant abandoned its bill against him and proceeded against the corporate defendant alone.

Complainant seeks a decree that Asbestos Limited, Inc. (hereinafter referred to as the defendant), specifically perform a written agreement entered info by that defendant with complainant whereby said defendant granted to complainant the exclusive rights and franchises for the United States and Canada for the refractory field and industries in the distribution, marketing and sale of an asbestos insulating material newly put out by defendant under the trade name of “New Era Insulation,” for which product said defendant owned patent and trade rights. Complainant also seeks a decree restraining defendant from selling or distributing to others the material and products covered, by the agreement and for discovery, accounting and damages occasioned by defendant’s breaches of the agreement.

The contract is dated January 29th, 1942, and was duly executed by the proper officers of both parties. There is a dispute as to the exact date it was executed by defendant and became effective. For complainant the contention is that although its officers executed it January 29th, 1942, it was not executed by defendant’s officers until February 13th, 1942, while defendant contends that its officers executed it January 29th, 1942. The evidence satisfies me that the contract was executed by defendant’s officers February 13th, 1942.

Defendant contends that the contract was canceled and abrogated about four days after January 29th, 1942, by oral consent of both parties and although the possibility of a new contract was discussed, none was ever agreed on and the relation between the parties thereafter was that of complainant purchasing defendant’s material and products merely as an ordinary customer of defendant. Complainant contends that the contract was never abrogated and that defendant continued to recognize its existence until October 18th, 1943, when defendant notified complainant that whatever arrangements had been made by complainant with defendant for the purchase of New Era insulation were canceled, the sole reason stated for that action being that complainant had failed to pay its bills as agreed.

It appears that after the contract with complainant had been executed, defendant found itself in a serious predicament because it had entered into a contract with the United States Government through the Navy Department, giving the Navy a first option on all its material, thus making it difficult and onerous for defendant to perform its contract with complainant. Prior to the date of defendant’s contract with complainant, defendant had been negotiating for a contract with the United States Government and had been advised as early as January 27th, 1942, that the Secretary of the Navy had decided to enter into a contract with defendant, which contract was actually executed February 5th, 1942. Because defendant’s obligations to complainant and to the Navy Deparment conflicted, I have no doubt that defendant was desirous of cancelling its contract with complainant. Defendant contends and complainant denies that complainant’s contract was then abrogated, complainant voluntarily surrendering its contractual preferences, yet as experienced business men defendant’s officers failed to secure actual surrender or destruction of the contract, or the exchange of mutual releases, or other written evidence of rescission and defendant continued to deal with complainant until defendant notified complainant in October, 1943, that it canceled its arrangements with complainant. The evidence does not sustain defendant’s contention.

The evidence satisfies me that defendant deliberately refused to fill complainant’s orders and while professing its inability to sell complainant, sold to others large quantities of its products covered by the contract, including some sales made to complainant’s customers, and that defendant also refused to allow complainant the discounts provided for in the contract and otherwise breached its contract with complainant.

Defendant contends that the contract is indefinite and uncertain and so obscure as to be incapable of enforcement. By the contract defendant represents that it owns patent and trade rights in an expanded asbestos material put out by it under the trade name of “New Era Insulation” and the contract states that complainant and defendant desire an arrangement for distributing and marketing that material and the products made therefrom. Then, according to the contract, defendant granted to complainant the exclusive rights and franchises for the refractory field and industries to market and sell New Era material and products which the contract states, are intended to cover all expanded asbestos materials under whatever name made and sold. Defendant covenanted that it would not compete with complainant in any way in the refractory field and the doubt or uncertainty stressed by defendant revolves around what meaning should be given to the words “refractory field.” It was known to defendant, of course, exactly what material it had patented and was producing under the New Era trade-name and what its capacities were for the purpose for which it was produced. I think the intent and meaning of "refractory field” is that field in which defendant’s products as covered by its patents axe capable of bang used for refractory purposes. Refractory material is that material which is used for the lining of furnaces and crucibles and for similar purposes where a resistance of high temperature is required. The resistance qualities of New Era material are adaptable for temperatures up to 1,600 degrees and not for temperatures beyond that limit, so I think that the refractory field covered by the contract is dearly that field in which defendant’s products can be used successfully.

Defendant contends that complainant breached that provision in the contract whereby it (complainant) agreed to discontinue selling in the refractory field its own “Insulblox” product in competition with the New Bra goods and from talring on and selling in such field any asbestos competing goods. Complainant’s Insulblox is a material designed to withstand temperatures in excess of 1,600 degrees and the evidence is uneontradicted that all sales made by complainant of its own product were to customers whose requirements were for materials to withstand a temperature in excess of 1,600 degrees; hence sales of complainant’s Insulblox were for purposes for which New Era products were unusable and therefore were not made in competition with defendant’s products.

Defendant further contends that complainant breached the contract by failure to make payments according to the terms of the contract for merchandise delivered on its order and that complainant in that respect was in default many times. There was some delay on the part of complainant in making payment fox some of the goods billed to it but complainant insists that such delay was caused, in the main, by defendant billing complainant for goods not covered by the contract and which goods it appears complainant took on consignment to pay for as used, and also resulted from disputes over the proper discounts to which complainant claimed to be entitled. In any event that situation is covered by the contract provision that either party might terminate the contract upon a serious default of the other not made good within thirty days of written notice. Admittedly no such written notice was given by defendant to complainant and on receipt of defendant’s letter of October 18th, 1943, complainant promptly paM the balance owing the defendant.

Notwithstanding that I find that the contract on which complainant bases its suit has legal existence and that defendant breached it, I conclude that complainant is not entitled to a decree that defendant specifically perform it. It is a contract for no specified period which calls for personal service and the supplying by defendant of patented material, the terms and conditions under which performance is to be made by defendant being such that the court could not carry into effect such a decree without supervision and oversight over numerous questions which probably would arise from time to time as to whether defendant was substantially complying with the contract terms, for instance manufacturing material of sufficient quantity and proper quality to fill complainant’s orders, and whether complainant was duly complying with the provisions and conditions thereof on its part to be observed, for instance paying its bills promptly and refraining from selling its own products in competition with defendant’s products, thus involving the possibility of repeated applications to the court to do justice to the parties. In such a situation the court will refuse to exercise its jurisdiction by way of specific performance and will leave the complainant to seek relief at law. Danforth v. Philadelphia, &c., Railway Co., 30 N. J. Eq. 12; Wharton v. Stoutenburgh, 35 N. J. Eq. 266-277; Madison Athletic Association v. Britin, 60 N. J. Eq. 160; Atlantic, Ac., Railway Co. v. Atlantic Freeholders, 84 N. J. Eq. 618; Fiedler, Inc., v. Coast Finance Co., Inc., 129 N. J. Eq. 161-167; 145 A. L. R. 691; 58 C. J. 889, § 45.

Complainant contends that although the contract fixes no term for which it shall run, the presumption is that the term intended is for the life of defendant’s patents. The evidence does not disclose what that term is but it may be quite long because the contract states that defendant owns patents and patent rights for material it has “newly put out” and the inference is that its patent rights had been acquired but a short time prior to the contract date and therefore still have a long period to run. Defendant may sell or assign its patents to others and thus make performance on its part impossible and there is involved in the matter of performance the question whether and to what extent the defendant is under' superior obligation to the United States Government to meet the demands of the Navy Department for the merchandise in question. But the complainant contends that if a decree for specific performance be coupled with an injunction restraining defendant from selling to others any of the products covered by the contract, the relief it seeks would be attended with little or no difficulty in enforcement because the court could readily penalize any specific violation of the injunction brought to its attention. An injunction would he ancillary to the main relief of a decree for specific performance and its enforcement would depend on the same considerations as would apply to defendant under a decree for specific performance. The same reasons which make impracticable the enforcement by the court of a decree for specific performance apply to an injunction, the observance of which by defendant being similar to observance of a decree for specific performance.

Moreover specific performance of a contract will not be granted where mutuality of obligation and remedy does not exist. Fiedler, Inc., v. Coast Finance Co., Inc., supra. Complainant seeks to compel defendant to supply it exclusively with the material described in the contract, apparently as and when complainant may order it and to enjoin defendant from supplying it to any other -person, but there is nothing in the contract which specifies the time and extent of material for which complainant must place orders; indeed complainant is under no contractual obligation to place any orders with defendant save as the contract provides that complainant will use its best reasonable efforts to push and increase sales of New Era materials in the refractory field, and the contract reserves to complainant the right of terminating it if by lack of patent enforcement serious competition in similar goods arises, or if for any other reason the enterprise becomes unprofitable. On the other hand, defendant’s right to terminate the contract is limited merely to a serious default on complainant’s part not made good within thirty days of written notice.


author: Pabker, J.

text:
    ANDREW KUCHMAN, PROSECUTOR, v. JOHN INGHAM, RECORDER OF THE TOWNSHIP OF MAPLEWOOD, DEFENDANT.
    Decided September 21, 1945.
    Before Justice Pabker,, at motions, March 10th, 1945.
    For the prosecutor, Richard A. Cashion.

    For the defendant, Ervin 8. Fulop.

   Pabker, J.

The desire of prosecutor is to review a conviction before the recorder of drunken driving, on the ground that said recorder was without jurisdiction because the complaint had not been made within twenty-four hours after the offense.

What happened was that prosecutor was arrested on October 11th by a police officer for drunken driving, at the scene of an accident; was brought promptly before the recorder; released on what seems to have been cash bail, for appearance on October 30th, and on that date a complaint of drunken driving was filed, and warrant issued.

For prosecutor it is claimed that the complaint should have been lodged within twenty-four hours after the arrest; but I cannot find any such requirement in the statute. The twenty-four hours clause relates solely to a limit of “detention,” i. e., temporary deprivation of liberty. As regards the time limit on commencement of an action for the statutory penalty provided by R. S. 39:4-50; N. J. S. A. 39:4-50, either by summons or warrant, the statute applicable is R. S. 39:5-3; N. J. S. A. 39:5-3, which fixes a time limit of thirty days after the commission of the offense. In the present case the warrant issued after nineteen days, and well within the time limit.

Allocatur of certiorari is therefore denied.