author: MR. JUSTICE ADESKO

text:
    National Boulevard Bank of Chicago, Plaintiff-Appellee, v. Corydon Travel Bureau, Inc., Alan R. Rosenberg, and Sam Silver, Defendants, and Melvin E. Levinson, Defendant-Appellant.
    Gen. No. 51,543.
    First District, First Division.
    April 15, 1968.

      Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (William D. Maddux, John M. O’Connor, Jr., and Elsie C. Spears, of counsel), for appellant, Melvin E. Levinson.
    A. Daniel Feldman, of Chicago (Isham, Lincoln & Beale, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

On October 1, 1965, a judgment by confession on a series of ten promissory notes was entered against Cory-don Travel Bureau, Inc., and Alan B. Bosenberg in favor of plaintiff, National Boulevard Bank of Chicago, for the amount of $243,870.86. At the same time judgment by confession was entered against Sam Silver and Melvin E. Levinson in the amount of $138,570.37, pursuant to their guaranty on five of the aforementioned notes. Defendants Melvin E. Levinson and Sam Silver separately petitioned the court to “vacate and reopen” the judgment by confession, each movant attaching an affidavit in support of his motion. After a hearing, each of the motions to “vacate and reopen” the judgment was denied and the judgment by confession was confirmed. Only Levinson prosecutes this appeal.

The procedure for opening a judgment by confession is governed by Supreme Court Rule 23, (Ill Rev Stats 1965, c 110, § 101.23) now Supreme Court Rule 276 (Ill Rev Stats 1967, c 110A, § 276). The Rule provides:

“A motion to open a judgment by confession shall be supported by affidavit in the manner provided by Bule 15 for summary judgments, and shall be accompanied by a verified answer which defendant proposes to file. If the motion and affidavit disclose a prima facie defense on the merits to the whole or a part of the plaintiff’s demand, the court shall set the motion for hearing. The plaintiff may file counteraffidavits. If, at the hearing upon the motion, it appears that the defendant has a defense on the merits to the whole or a part of the plaintiff’s demand and that he has been diligent in presenting his motion to open the judgment, the court shall sustain the motion either as to the whole of the judgment or as to any part thereof as to which a good defense has been shown, and the case shall thereafter proceed to trial upon the complaint, answer, and any further pleadings which are required or permitted. If an order is entered opening the judgment, defendant may assert any counterclaim, and plaintiff may amend his complaint so as to assert any other claims, including claims which have accrued subsequent to the entry of the original judgment. The issues of the case shall be tried by the court without a jury unless the defendant or the plaintiff demand a jury and pay the proper fee (if one is required by law) to the clerk at the time of the entry of the order opening the judgment. The original judgment stands as security, and all further proceedings thereon are stayed until the further order of the court, but if the defense is to a part only of the original judgment, the judgment stands as to the balance and execution may issue thereon. If a defendant files a motion supported by affidavit which does not disclose a defense to the merits but discloses a counterclaim against the plaintiff, and defendant has been diligent in presenting his motion, the trial court may permit the filing of the counterclaim and stay all proceedings on the judgment by confession until the counterclaim is disposed of.”

Appellant’s theory is that he complied with the requirements of Supreme Court Rule 23 in that he presented his motion with due diligence and the affidavit set forth a meritorious defense to the cognovit judgment. No issue is raised by plaintiff-appellee with respect to whether defendant acted with due diligence. Plaintiff asserts only that “Levinson has failed to set forth a meritorious defense, and that the trial court properly refused to vacate the cognovit judgment.” Although the parties are quite lax in the use of the terms “open” and “vacate” (See Farmers Bank of North Henderson v. Stenfeldt, 258 Ill App 428 (1930)), we consider the motion filed by appellant, in the trial court, as a motion to opew a judgment by confession pursuant to the Supreme Court Rule.

Considering the scope of Rule 23, we note initially that the court is to determine only whether or not the motion and affidavit in support thereof disclose a prima facie defense. Barrick v. Barnes, 46 Ill App2d 172, 196 NE2d 526 (1964). No inquiry into the facts of the cause is to be conducted. Walrus Mfg. Co. v. Wilcox, 303 Ill App 286, 25 NE2d 132 (1940). All the allegations by defendant are to be accepted as true. Scheinfeld v. Muntz TV, Inc., 67 Ill App2d 8, 214 NE2d 506 (1966). The only question for the court to decide is whether from the motion to open the judgment it appears that defendant has a defense which entitles him to a trial on the merits. Lietz v. Ankrom, 350 Ill App 437, 113 NE2d 184 (1953). The motion is addressed to the sound legal discretion of the court. Keller v. Hyland Builders Corp., 38 Ill App2d 209, 186 NE2d 787 (1962). It is to be considered under liberal, equitable principles, Alter & Associates, Inc. v. Zylvitis, 36 Ill App2d 195, 183 NE2d 750 (1962), and the right to present a defense is considered an exercise of the conscience of the court. Larsh v. Green Gold Farms, Inc., 68 Ill App2d 113, 214 NE2d 924 (1966). Therefore, it is essential that we carefully examine defendant’s motion and affidavit to determine if a prima facie defense is pleaded. Further, we must examine the nature of the evidence set forth in the affidavit to determine if such evidence would be admissible at a trial on the merits. Sharp v. Kennedy, 12 Ill App2d 353, 139 NE2d 594 (1957).

The affidavit in support of the motion to open the judgment entered by confession alleges that Corydon Travel Bureau, Inc., (Corydon) and plaintiff orally entered into a financing agreement. Plaintiff lent money to Corydon for which promissory notes were executed. Plaintiff received an assignment of Corydon’s accounts receivable and was to collect the accounts, using the receipts to pay off the notes. Defendant further alleges that plaintiff requested him to guarantee five of the notes executed by Corydon. In order to induce defendant to execute the guaranty, it is asserted that plaintiff agreed to take certain steps as a condition precedent to its use. These conditions were that plaintiff would obtain a credit report on Corydon and Alan R. Rosenberg, a principal of the corporation; audit Corydon’s accounts; collect the accounts receivable; notify defendant of any irregularities in the agreement with Corydon, and in particular with respect to the accounts receivable; determine if proper corporate resolutions were passed to authorize Rosenberg to borrow on behalf of Corydon; cause Corydon to transfer its lock box and bank account to the plaintiff’s bank; notify Corydon’s old bank to transfer all monies collected to plaintiff’s bank; and no loans would be made to Corydon until the bank accounts had been transferred and plaintiff had access to Corydon’s lock box.

Defendant’s motion then alleged that, relying on plaintiff’s promises, he executed the guaranty, but plaintiff failed to perform any of the aforementioned acts. As a consequence, plaintiff never had control of the Corydon bank accounts, lock box, or accounts receivable and these assets have been misappropriated and dissipated.

Defendant argues that his affidavit establishes the defense of lack of delivery because a delivery subject to a condition precedent is not a complete delivery until such condition is fulfilled. Bell v. McDonald, 308 Ill 329, 139 NE 613 (1923); Jordan v. Davis, 108 Ill 336 (1883). The allegations of the affidavit set forth acts which plaintiff agreed to perform prior to the guaranty becoming effective and the failure to perform such acts. We agree that these allegations show a conditional delivery.

No issue is raised as to the sufficiency of the pleading, nor does plaintiff take issue with the law of conditional delivery. Instead it argues that such a rule is inapplicable here, because defendant’s affidavit offers only oral parol evidence which may not be used to establish a conditional delivery of a written instrument if such evidence will expressly contradict the clear and unambiguous terms of that same instrument. In its brief, plaintiff states:

“Defendant alleges that the parties entered into an oral agreement requiring plaintiff to audit and collect the accounts receivable of Corydon, to cause Corydon to transfer its lock box and bank account from the Hartford National Bank to the plaintiff, and to notify the Hartford National Bank that all monies collected on behalf of Corydon should be transferred to plaintiff. Each of these allegations refers solely to the collection and preservation of the accounts receivable of Corydon, the collateral for the loans. The written instruments, however, expressly provide that defendant ‘consent (s) that the security . . . may be . . . surrendered . . . without notice to the undersigned,’ that it may be ‘release (d) . . . without notice,’ and that plaintiff ‘is released from all obligation to collect or in any way protect said property.’ It would be difficult to conceive of language more clear or explicit than this in stating the intent of the parties that plaintiff should have no duties or obligations at all toward the collateral. Defendant also alleges that the oral agreement called for plaintiff to give notice to defendant of any irregularities in the performance of the agreement, especially with respect to the collection of the accounts receivable. But the written instruments specifically provide that defendant waived all notice of any such default.”

As to the defendant’s allegations that plaintiff was to obtain a credit report on Corydon and to determine if proper corporate resolutions were passed, plaintiff argues that there is no allegation that Corydon’s credit was bad or that the resolutions were not passed.

Proceeding as we are, under Supreme Court Rule 23, the singular issue is whether defendant’s affidavit sets forth a meritorious defense. Under the theory of the Sharp case, supra, this, in turn, requires us to decide if the facts alleged in the affidavit could be testified to at a trial on the merits. Determination of this question depends upon application of the parol evidence rule. “ ‘Few things,’ write Professor Thayer, ‘are darker than this, or fuller of subtle difficulties’; and this condition of the law all members of the profession will concede.” Wigmore on Evidence, 3rd ed, § 2400. Also see 3 Corbin on Contracts, § 589.

The pertinent language of the guaranty executed by defendant provides as follows:

“For Value Received, we the undersigned do hereby jointly and severally guarantee the payment of the within note, in accordance with its terms, at maturity or any time thereafter, . . . and the undersigned hereby waive . . . demand, protest, notice of protest or notice of default, . . . and diligence in collection, consent that the security for the said note, or any part thereof, may be exchanged or surrendered from time to time or the payment thereof extended from time to time without notice to the undersigned or any of them, and hereby accept all of the provisions of the within note.”

With respect to defendant’s allegation that plaintiff was to collect the accounts receivable and to notify defendant of any irregularities in the agreement with Corydon, the point is well taken that parol evidence would be an attempt to change the terms of the contract. However, with respect to the other allegations in defendant’s motion, we feel he has stated facts which, if proven to be true, could constitute a defense to an action on the guaranty.

We find nothing in the note or guaranty which states that the plaintiff will not conduct an independent credit investigation of Corydon or make an audit of Corydon’s accounts. Without anticipating what the proof will show, we find it perfectly logical to presume that if the bank’s own investigation indicated that the loan to Corydon was not commercially sound, the loans would never have been made and defendant would not be willing to guarantee such loans.

We are fully aware that the guarantor “consents that the security . . . may be exchanged or surrendered from time to time.” If the lock box and bank account had been transferred to plaintiff, and then released, there would be no ground for complaint. However, defendant has alleged that plaintiff never obtained control of the lock box and account. Defendant should have the opportunity to prove this fact. Again, without anticipating what the evidence will show, it seems reasonable to presume that only if the plaintiff was assured of collecting the full proceeds of the note would it “exchange or surrender” the contents of Corydon’s lock box or bank account. Defendant may have relied on this and therefore was willing to act as a guarantor only after the lock box and bank account were in plaintiff’s possession.

The allegation that plaintiff failed to ascertain if an appropriate corporate resolution was passed by Corydon to allow Rosenberg to borrow money also appears to us to be a proper fact which defendant should be allowed to prove. Plaintiff argues that whether or not the resolution was passed could not affect defendant’s liability. From the present state of the record all we know is that Rosenberg is a principal of Corydon. We do not know who the other stockholders are. Absent any other facts, the lack of a proper corporate resolution could affect a guarantor’s liability. Disposition of this question must await proof of all the relevant facts.

We are also aware of the provision of the note which provides:

“Said holder is released from all obligation to collect or in any way protect said property or to exercise any of the foregoing rights or powers and shall have no liability for failure so to do or for delay in so doing.”

The key phrase is “said property.” In the context, it is clear that this entire provision refers to the collateral security for the note. As indicated above, parol evidence could not be used to show any promises by the plaintiff with respect to how it would deal with the collateral. The motion to open judgment by confession, however, alleges promises by the plaintiff of acts it would perform which are not related to collection or protection of the security for the loans. It is these allegations which we feel entitle defendant to the opportunity to present his defense.

Plaintiff relies primarily on two cases to sustain his position that defendant is not entitled to prove the allegations in the motion to open judgment by confession. The first case is National Bank & Trust Co. of South Bend v. Becker, 38 Ill App2d 307, 187 NE2d 355 (1962). In the Becker case, plaintiff bank lent $50,000 to a corporation and about a month later, an additional $10,000. The defendants then executed a guaranty as to all existing and future indebtedness of the borrower. Subsequently, additional loans of $35,000 were made to the corporation. When sued on his guaranty, defendant attempted to introduce oral and written parol evidence which limited his guaranty only to loans in excess of $60,000. Such parol evidence directly contradicted the provisions in the guaranty that it applied to all existing and future indebtedness and was therefore rejected by the trial court. This court refused to permit defendant to limit his liability by use of parol evidence.

Becker is clearly distinguishable from the instant case. As already pointed out, the allegations by defendant Levinson do not directly contradict the terms of the guaranty executed here. Furthermore, the Becker case acknowledges use of parol testimony to establish a conditional delivery.

“(O)ral proof of the conditional delivery is admissible despite the face of the document to the contrary. To come within the rule which admits parol evidence of a conditional delivery of a written contract, the condition must be qualified as a condition precedent and not a condition subsequent. If the condition is extraneous to the unambiguous language of the contract, it may qualify as a condition precedent.” (P 312.)

In the instant cause, defendant has alleged that plaintiff agreed to perform certain acts extraneous to the written guaranty. Consequently, defendant should have the opportunity to prove those allegations, even if such proof requires use of parol evidence.

The other case relied upon by plaintiff, Chicago Title & Trust Co. v. Cohen, 284 Ill App 181, 1 NE2d 717 (1936), is cited in Becker. In Cohen, the defendant and 44 other persons guaranteed the payment of certain bonds. Defendant claimed a conditional delivery of his guaranty in that it was not to become binding until executed by additional parties, including the investment company which procured his signature. The court agreed that “conditional delivery may be shown outside the language of the contract, and that such proof does not necessarily contradict or vary its terms by parol.” (P 194.) However, the effect of defendant’s allegations was to write additional promisors into the agreement and to that extent, remake the contract. The contract had described the guarantors as “members” of the borrowing institution. Defendant alleged the names of persons who did not fall into that classification as required signators. Defendant also claimed the investment company induced him to sign, but the guaranty specifically stated that the guarantors signed to induce -the making of the loan. These factors clearly distinguish Cohen from the instant cause.

The court in the Cohen casé, as in Becker, recognized the right to use parol evidence to demonstrate a conditional delivery. It was only the express contradictory language in the guaranty which prevented introduction of such evidence. No such express contradictory language is to be found in the guaranty signed by defendant Levinson.

From our analysis of this cause, we conclude that defendant has alleged sufficient facts in his motion to open the judgment by confession to show conditions precedent to the effectiveness of the guaranty. Certain of these well-pleaded facts are not expressly contradicted by the language of the guaranty and their proof is not prevented by the parol evidence rule. The failure of plaintiff to perform the conditions precedent is a meritorious defense to an action on the guaranty. Defendant is therefore entitled to a trial on the merits so that he may attempt to prove the conditional delivery alleged in his motion.

In view of the foregoing, the order denying defendant’s motion to open the judgment by confession is reversed and this cause remanded with directions to vacate the order confirming such judgment and proceed in conformity with the views expressed in this decision.

Judgment reversed and cause remanded with directions.

BURMAN, P. J. and MURPHY, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE BURKE

license: Public Domain

text:
    Sherman H. Skolnick and Peter S. Sarelas, Plaintiffs-Appellants, v. Oscar M. Nudelman, Defendant-Appellee.
    Gen. No. 52,172.
    First District, Second Division.
    April 23, 1968.

      Sherman H. Skolnick, and Peter S. Sarelas, pro se, of Chicago, appellants.
    Oscar M. Nudelman, pro se, of Chicago, appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

This appeal is taken from the dismissal, on motion of defendant, of plaintiffs’ third amended complaint.

Prior to October 1962, plaintiff Sherman Skolnick was represented by plaintiff attorney Peter Sarelas in three lawsuits, one in the Superior Court of Cook County and two in the United States District Court; it appears that one of the federal cases was dismissed by the court. On October 31, 1962, Skolnick wrote a letter addressed to defendant attorney “Oscar M. Nudelman, Decalogue Society, Chicago, Ill.” The letter represented that Skolnick was referred to Nudelman by a third party, and requested Nudelman to read and considér four documents enclosed therewith consisting of Skolnick’s complaint in a federal court action, the transcript of proceedings in that action, several pages from the defendant’s “Memorandum in Reply to Plaintiff’s Brief,” and a letter from the Chairman of the United States House of Representatives Judiciary Committee concerning the federal court action. It further appears that Nudelman turned over the letter and the documents to attorney Harry G. Fins for the latter’s consideration, and that both Nudelman and Fins had a conversation concerning the matter a few days later.

Plaintiffs filed their original complaint in this cause on December 13, 1963, naming both Nudelman and Fins as parties defendant. A motion filed by Fins for summary judgment as to the action against him was granted on June 16, 1964, and the judgment thereon was affirmed on appeal. See Skolnick v. Nudelman, 71 Ill App2d 424, 218 NE2d 775.

Plaintiffs subsequently filed an amended complaint against Nudelman, to which was filed a motion to strike and dismiss. The amended complaint was stricken in January 1965, and plaintiffs were given leave to file a second amended complaint which they filed later that month. Nudelman again filed a motion to strike the second amended complaint, among other relief requested, to which plaintiffs filed objections. An affidavit in support of his motion was also filed by Nudelman. A motion to strike the affidavit was filed by both plaintiffs, and Skolnick thereafter alone filed a counteraffidavit. Disposition of the matters filed in connection with the second amended complaint was assigned to Judge Samuel Epstein for hearing on June 15,1965.

After several continuances were allowed with respect to the hearing, the cause was finally set for March 25, 1966. On March 21, 1966, plaintiffs filed a motion to disqualify Judge Epstein for the reason that he was financially interested in the outcome of the case. They alleged that the judge was a member of the Decalogue Society of Lawyers; that Nudelman “by and through his pleadings in the instant case, has involved and implicated the Decalogue Society” and “seeks to justify his intentional torts against these plaintiffs under the guise and mask of being a functionary of said Decalogue Society . . .”; that due to certain allegations made by Nudelman, the Decalogue Society “may become a necessary party-defendant in this case . . that a jury decision favorable to the plaintiffs “may then become assessable against the said Judge ... as a member of said Society . . .”; and that Judge Epstein “therefore has a pecuniary interest in this matter which disqualifies him from adjudicating the instant case.”

Hearing on the motion to disqualify was had on March 23rd; the motion was denied. Also denied at the same hearing was a petition for change of venue presented by plaintiffs, without notice to the defendant, after the motion to disqualify was denied. The order of March 23rd recited:

“This cause coming on to be heard on plaintiff’s motion for this Court to disqualify himself for reasons set out in said motion, and the Court having read said motion and heard arguments of counsel,
“IT IS HEREBY ORDERED that said motion be and the same is hereby denied.
“Upon denial of said motion, plaintiffs, without notice to opposing counsel, presented a petition for change of venue from this Court and from twenty-four other Judges thereof. Upon consideration of said motion, same having been presented without prior notice to opposing counsel, and being untimely, the said motion for change of venue is hereby denied.”

Hearing on the defendant’s motion to strike the second amended complaint was had on March 25th; the second amended complaint was stricken and dismissed and plaintiffs were given leave to file a third amended complaint.

Plaintiffs’ third amended complaint, consisting of three counts, was filed on May 4, 1966. Count I alleged interference by Nudelman, and by Nudelman in combination with Harry G. Fins, with plaintiffs’ attorney-client relationship; Count II alleged defamation of Sarelas’ professional and personal character, and of Skolnick’s character; and Count III alleged interference with plaintiffs’ civil rights. Nudelman again filed a motion to strike the third amended complaint and the hearing was assigned to Judge Epstein. It does not appear that plaintiffs in any way objected to the assignment of Judge Epstein for disposition of the motion to strike the third amended complaint. After a hearing was had on November 14, 1966, the court denied plaintiffs’ motion to strike defendant’s motion to strike the complaint and overruled their objections filed thereto, allowed defendant’s motion to strike the third amended complaint and dismissed the complaint on grounds of scurrility.

On December 13, 1966, both plaintiffs filed a motion for rehearing and reconsideration of the November 14th order dismissing the third amended complaint. Hearing thereon was set for January 17, 1967, at which hearing Skolnick failed to appear, and the December 13th motion was denied. A subsequent motion filed by Skolnick to vacate the January 17th order was also denied. This appeal followed.

Count I of the third amended complaint alleged that Nudelman interfered with the attorney-client relationship which existed between the plaintiffs prior thereto and further alleged a conspiracy between Nudelman and Fins to interfere with the relationship. Count I specifically alleged that “as a consequence of the malconduct and malevolent acts and doings of defendant Oscar M. Nudelman,” Skolnick severed his contractual relationship with Sarelas in the case in the Superior Court of Cook County in April 1963, and in the two federal cases in July 1963, and that “because of the malconduct and malevolent acts and doings of . . . Nudelman,” Skolnick was forced to represent himself after said dates as “a party-litigant pro se.” Count I further alleged that the letter of October 31, 1962, from Skolnick to Nudelman, referred to above, was employed by Nudelman to “set in motion, or to trigger off, a natural conspiracy between the defendant Oscar M. Nudelman and Harry G. Fins, both of whom purport to be functionaries of the Decalogue Society of Lawyers”; that Nudelman in combination with Fins, “contrived and conspired to intermeddle and interfere” in the aforesaid litigation and to “use said letter as a part of a scheme to proceed, under the sham and pretense of being a functionary of some kind of the Decalogue Society of Lawyers, to commit champerty and (sic) maintenance and barratry”; and that in furtherance of said scheme “Nudelman, in combination with Harry G. Fins, used the malevolent and diabolical instruments of rumor-spreading and slander-mongering to undermine” Sarelas as Skolnick’s attorney in the aforementioned litigation and the “instruments of threats, coercion, and terror-tactics directed in particular against . . . Skolnick, a paraplegic invalid and shut-in.”

Count I also alleged that “in furtherance of said conspiracy and scheme, to terrorize and coerce . . . Skolnick to cause him to sever the contractual relationship with . . . Sarelas, and for the purpose of compelling . . . Skolnick to take on the services of . . . Nudelman and of . . . Fins, a self-declared expert on appeal work,” Nudelman stated to Skolnick over the telephone, on the dates of December 12 and 13, 1962, and January 8, 1963, that Sarelas was a “regular nut,” a “screwball,” a “mishuginer,” and a “one-man-office.” It was alleged that Nudelman also stated to Skolnick that Sarelas could do no good for him, that “he has no backing. He’s poorly financed and you’re poorly financed”; that “you need somebody to help you”; and that “you’ve got good cases . . . Fins told me your lawyer Sarelas is simply not equipped to handle cases like yours” and “if you are going to fight bailiffs, you’re not going to get anything. Fins could handle everything.” It was further alleged that Nudelman stated during those telephone conversations that he helped to organize the Decalogue Society; that the Decalogue Society “is not what it used to be”; that “he knew the Decalogue has become a front for pounding heads together in order to make deals in litigation”; and that the “judges who belong to the Decalogue are not out to stir up trouble, they want to cover it up.”

Count I also alleged that on July 10, 1963, Nudelman, “by and through Harry G. Fins, purposely and intentionally approached . . . Sarelas, and announced that he was making it his usual self-declared business to inter-meddle and interfere, as a stranger,” in Sarelas’ lawsuits, including those wherein he was representing Skolnick, and that Nudelman and Fins were “interfering to help the opponents in said cases” against plaintiffs. Count I finally alleged that on April 24, 1964, Nudelman, through Fins, stated to Sarelas that he knew certain other litigant-opponents of Skolnick intended to appeal certain decisions; that this was intended by Nudelman to mean that he was “actively in contact with and assisting” Skolnick’s said opponents, inasmuch as such information had not been published; and that all such “malconduct was to perpetuate and continue their intermeddling, interference, champerty and (sic) maintenance, and barratry.” The count then restated that Nudelman’s purpose in all the activities as alleged was to deprive Skolnick of the attorney of his own choosing by means of “rumor-spreading, slander-mongering, and other malevolent instruments directed against” Sarelas; that defendant owed a duty to plaintiffs “not to intentionally and maliciously interfere” with the contractual relationship of the plaintiffs and not to “engage in threats, coercion and intimidation in making war upon the plaintiffs’ contractual relationship”; that defendant owed a duty to Skolnick, “known to defendant to be a paraplegic invalid and shut-in, not to coerce, frighten and intimidate said plaintiff”; and that defendant acted in that regard “intentionally, sadistically, wilfully, evilly, and malignantly.”

Count II realleged much of Count I and alleged the defamation of Sarelas’ character as a person and an attorney. Count II further alleged that both Sarelas and Skolnick were defamed by means of a certain “libelous and defamatory statement” made by Nudelman “by and through Harry G. Fins,” by means of an amendment to a motion filed by Fins to strike the original complaint herein as it applied to Fins, which motion was allowed by the trial court and which action was later upheld on appeal as hereinabove noted. It was alleged in Count II that Fins’ said amendment to the motion, filed in March 1964, “falsely described and characterized certain other lawsuits of plaintiffs, as a ‘series of groundless and frivolous actions filed by plaintiffs against lawyers, a Master in Chancery, . . .’” and the like, “with the object of harassing and vexing persons who disagree with plaintiffs’ point of view. Said libelous and defamatory statement was published and circulated, in and about the courthouse, under the disguise of a purported court paper having the label of” Fins’ amendment to his motion to strike the original complaint. It was alleged that this “false and defamatory statement was impertinent, irrelevant and immaterial, and was circulated with malice aforethought to defame plaintiffs.” Count II further alleged that there are “customs, practices and usages in Cook County, Illinois, . . . that defendants in obstruction of justice controversies are allowed, permitted and condoned to publish false and defamatory statements” to prevent plaintiffs therein from enforcing their rights; that such statements are “published and circulated in and about the courthouses . . . under the disguise and sham of being court papers ... so that the malefactors would then have a shield of ‘privilege’ or ‘immunity’ ”; that such defendants are allowed to use such immunity to foreclose action by said plaintiffs thereon, irrespective of whether the statement was made in a judicial proceeding or whether it was material to an obstruction of justice action; that the “malefactors” publish said statements “knowing full well that it is likewise the custom, practice, and usage in Cook County, Illinois, for the State’s Attorney of said County to defend rather than prosecute such persons when they are sued in the Federal District Court for interfering” with the civil rights of citizens; and that “such malefactors are allowed, permitted and condoned to publish and circulate such false and defamatory statements in order to further, and to perpetuate, the aforementioned customs, practices, and usages.”

Count III also realleged much of Count I and complained that plaintiffs were deprived of their civil rights as guaranteed by Title 42 of the United States Code, section 1985(2), in that Nudelman acted in furtherance of a conspiracy, with Fins, to damage Skolnick in his person and property and “to terrorize, coerce, and intimidate him, as a federal-court party-litigant and witness; and . . . Sarelas . . . for having represented a federal-court party-litigant.” Count III alleged that the said conspiracy was for the “sadistic design and purpose to deter and intimidate . . . Skolnick, known by the defendant to be a paraplegic invalid and shut-in, from attending and testifying” in the two federal court actions set out above, and for the “sadistic design and purpose of harming and injuring . . . Sarelas in his profession . . . and reputation for having enforced, or for having attempted to enforce, on behalf of . . . Skolnick, the Equal Protection of the Laws of the State Courts of Illinois” in the Superior Court of Cook County action set out above.

The foregoing summary represents the gist of plaintiffs’ third amended complaint. A reading of the third amended complaint, which speaks for itself, clearly bears out that the trial court was justified in striking the complaint and dismissing the cause on the grounds of scurrility. As was stated by the trial judge during the hearing on the matters filed in connection with the third amended complaint, “the complaint is replete with scurrilous material that no judge should be obligated to read.” Biggs v. Cummins, 16 Ill2d 424, 158 NE2d 58.

The third amended complaint, which numbers some eight single-spaced, small-typewritten pages, is replete with undue vilification of the defendant in the form of vituperations characterizing the acts allegedly performed by him as wrongfully performed, with unfounded and unsupported criticism of the Illinois courts and of the judicial process in general, and with unfounded conclusory allegations of misfeasance in the office of the Cook County State’s Attorney. Furthermore, many of the allegations contained in the third amended complaint are subject to the same objections as those contained in the original and the two prior amended complaints, all of which were likewise stricken.

The charge of malicious interference with contract is based primarily upon the allegations of “threats, coercion and intimidation,” and the like, of Skolnick by Nudelman, who was alleged to have acted” “intentionally, sadistically, wilfully, evilly, and malignantly” in that regard, on the dates of December 12 and 13, 1962, and January 8, 1963, in an effort to “interfere and intermeddle in the contractual relationship” of plaintiffs. It should be noted, however, that the complaint alleges that Skolnick did not sever the attorney-client relationship until April 1963 with regard to the state court case, and July 1963 with regard to the two federal court cases, a significant length of time in view of the serious character of the means allegedly employed by defendant through which he sought to accomplish his purpose.

Although it is claimed plaintiffs’ contractual relationship was severed in April and July 1963 in the respective lawsuits, it is worthy of note that plaintiffs thereafter jointly filed and collaborated in the filing of the four complaints in this action, as well as some 27 out of the approximately 35 motions, objections, memoranda, and the like, filed on plaintiffs’ side of this action. These include the filing of the appeals from the orders entered below as to both defendant and Fins, as well as the advancement of the arguments in the briefs on the respective appeals. A consideration of these pleadings, etc., reveals a close collaboration by and between the plaintiffs in the drawing of the same, inasmuch as many of the allegations and much of the material therein set forth concerning each individual plaintiff are so interwoven and intertwined that it is at times difficult to determine to which of the plaintiffs the allegation refers or toward which plaintiff the defendant’s alleged injurious actions were intended.

Finally, the malicious interference with contractual relations allegation contained in the third amended complaint is based entirely upon the conclusions of the pleaders and the “profuse and vituperous proliferation of adjectives.” The allegations that Skolnick “severed his contractual relationship with his then attorney . . . Sarelas ... as a consequence of the malconduct and malevolent acts and doings of defendant Oscar M. Nudelman, as hereinafter stated” and that he “was forced to represent himself ... as party-litigant pro se, all because of the malconduct and malevolent acts and doings of the defendant” are no more than conclusions. The complaint fails to set forth the ultimate facts necessary to establish a relationship between the alleged severance of the plaintiffs’ attorney-client relationship and the actions of the defendant which allegedly took place several months before. While it is true that one who has been injured by another’s malicious interference with his contractual relationships may maintain an action in damages therefor, Doremus v. Hennessy, 176 Ill 608, 52 NE 924, and that this rule is applicable to the attorney-client relationship, Herman v. Prudence Mut. Cas. Co., 92 Ill App2d 222, 235 NE2d 346, the complaint must nevertheless allege the necessary matters in order to state a good cause of action. Northern Ins. Co. of N. Y. v. Doctor, 23 Ill App2d 225, 228, 161 NE2d 867. Here, the allegations pertaining to the “inducement” and to the “breach” are mere conclusions and consequently cannot support an action for malicious interference with contractual relations.

The claim is also made in the third amended complaint that Sarelas was defamed in his personal reputation and his professional reputation by defendant’s calling him a “nut,” a “mishuginer,” a “screwball,” and the like, and that both Sarelas and Skolnick were defamed in their respective reputations by means of the “Amendment to Motion of Harry G. Fins to Strike Complaint” filed by Fins in March 1964 with respect to the original complaint as it applied to him.

The terms “nut,” “mishuginer,” and the like, do not connote opprobrium or reprehensibility. At most they are epithets, describing a “peculiar or eccentric person.” While they may be vituperative and abusive, they amount to no more than “name-calling” and are not defamatory. See e. g. Kennedy v. Crouch, 191 Md 580, 62 A2d 582, 587; Walker v. Tribune Co., 29 F 827. With respect to the terms “one-man-office,” “no backing,” and the like, as defendant allegedly described Sarelas to Skolnick, these terms do not impute a want of integrity or capacity in Sarelas’ legal profession, and fall far short of disparaging his professional reputation. See also Torres v. Huner, 150 App Div 798, 135 NYS 332.

As to the claim that plaintiffs were defamed by the amendment to the motion to strike filed by Fins in connection with the original complaint and that Nudelman should be held responsible therefor, the amendment in no way involved Nudelman, nor does it appear that he in any way took part in its .creation or filing. Secondly, the pleading was a legal document filed in connection with a pending lawsuit and was therefore privileged.

The final allegation contained in the third amended complaint concerns the alleged violation of plaintiffs’ civil rights as guaranteed by section 1985(2) of Title 42 of the United States Code. That section provides that if two or more persons conspire to deter, by force, intimidation, or threat, any party or witness from attending or testifying in any court in the United States, or conspire to impede or hinder any citizen or to injure him for enforcing or attempting to enforce the right of any person to the equal protection of the laws, the parties guilty thereof shall be liable to an action in damages for the injuries so inflicted. 42 USCA § 1985(2). Count III is based entirely upon conclusions and conjecture. By means of such phrases as “in furtherance of a conspiracy to damage,” “a conspiracy to hinder, obstruct, impede . . . “for the sadistic design and purpose to deter plaintiff . . . and the like, the count seeks to allege interference with plaintiffs’ civil rights. No allegation of fact is alleged upon which may be based an action for obstruction of justice or interference with plaintiffs’ right to appear or to otherwise participate in the actions pending in the courts in which they were interested.

With regard to the allegation that defendant “intermeddled” in other of plaintiffs’ lawsuits, thereby committing the offenses of champerty and maintenance, the matters alleged in the third amended complaint show only that defendant stated he was “assisting” plaintiffs’ opponents in those cases. At best, this allegation falls into the same category as the interference with contract allegation, dealt with above.

Plaintiffs further contend that Judge Epstein had an interest in the outcome of these proceedings and consequently committed error in refusing to disqualify himself, on plaintiffs’ motion, from the hearing on the matters filed in connection with the second amended complaint. We disagree.

Plaintiffs’ contention in this regard is based entirely upon supposition and conjecture. Plaintiffs theorize that, because Judge Epstein was a member of the Decalogue Society and because defendant, “by and through his pleadings in the instant case, has involved and implicated the Decalogue Society . . .” in these proceedings by affirmative allegations that he is a “past President of the Decalogue Society . . .” and that he is a “member of the Board of Managers of said Decalogue Society,” the Decalogue Society may “become a necessary party-defendant in this case” upon trial thereof; that Judge Epstein may be called as a witness at said trial; and that any judgment favorable to plaintiffs upon trial of the issues would therefore become assessable against the judge. (Albeit more than two years had elapsed since the allegedly actionable actions complained of had transpired and none of the pleadings theretofore filed by plaintiffs alleged any facts showing defendant acted “for and on behalf of” the Decalogue Society, pleadings were filed by plaintiffs after their motion to disqualify was filed, including their third amended complaint, and the Decalogue Society was never in fact made a party to these proceedings; it further does not appear that plaintiffs in any way attempted to make it a party hereto.) Under the circumstances, the trial judge did not abuse his discretion in refusing to disqualify himself from these proceedings.

The cases cited by plaintiffs in support of their position in this regard are not in point. In re East Maine Tp. Community Ass’n, 15 Ill App2d 250, 259-262, 145 NE2d 777, involves a situation where the judge presiding at an action instituted by his attorney son, which was later taken over by the judge’s son-in-law, refused to disqualify himself, although other judges were available to hear the matter; the reviewing court held this to be error. Commissioners of Union Drain. Dist. v. Smith, 233 Ill 417, 84 NE 376, involved the question of whether a tax assessor, who owned land within the area where he was making assessments, was competent to make such assessment. The court held, under the circumstances, he should have disqualified himself. It clearly appears that neither of these situations is applicable to the case at bar.

After Judge Epstein denied plaintiffs’ motion to disqualify, they presented, without prior notice to defendant, a petition for change of venue from the hearing on the matters filed in connection with the second amended complaint. The petition was denied by the trial court on the grounds that it was both untimely and was presented without prior notice to defendant. While there appears to be a division of authority as to whether plaintiffs waived error, if any, which the trial judge may have committed in denying the petition for change of venue by their proceeding to a hearing thereafter and participating therein (see Howarth v. Howarth, 47 Ill App2d 177, 197 NE2d 736; Lyles v. Stanford, 3 Ill App2d 113, 120 NE2d 238; but see Balaszek v. Blaszak, 405 Ill 36, 89 NE2d 796; Patek v. Baim, 299 Ill App 405, 20 NE2d 298), plaintiffs nevertheless failed to object to the subsequent assignment of Judge Epstein to dispose of the matters filed in connection with the third amended complaint, from the dismissal of which this appeal is taken.

After their second amended complaint was stricken by Judge Epstein on March 25, 1966, plaintiffs were given leave to file a third amended complaint, which they filed on May 4, 1966. On August 15, 1966 defendant filed a motion to strike and dismiss the third amended complaint. On August 31, 1966, on motion of defendant to set his motion to strike and dismiss for hearing and on motion of plaintiffs for an extension of time within which to file objections to defendant’s motion and to set the matter for hearing on the contested motion calendar, the assignment judge granted the extension of time requested and assigned the disposition of the matters filed in connection with the third amended complaint to Judge Epstein. Plaintiffs filed their objections to defendant’s motion to strike and dismiss on November 1, 1966, and defendant filed his reply thereto a few days later. The matter came on for hearing before Judge Epstein on November 14th, some two and one-half months after his assignment to hear the matters filed in connection with the third amended complaint, without any objection having been raised by plaintiffs. It should also be noted that plaintiffs’ petition for change of venue was not presented to Judge Epstein until after he had ruled on their motion to disqualify. We find no error in this ruling.

The final point raised by plaintiffs is that they were deprived of due process of law due to the trial court’s alleged “threats and terror against . . . Skolnick . . . so that he would not appear in open court.” Although this matter was introduced into the record solely through Skolnick’s motion of February 16, 1967, to vacate the order of January 17, 1967, rather than by the proper method of a transcript of proceedings or a bystander’s report of proceedings, it appears that this contention relates to a colloquy which occurred between Skolnick and the trial judge at the November 14th hearing with respect to the matters filed in connection with the third amended complaint. The argument is made that, at the November 14th hearing, the trial judge threatened to place Skolnick in jail, “without lawful cause,” and that both Skolnick and his father, who accompanied Skolnick with the latter’s wheelchair, were thereafter afraid to appear in the judge’s courtroom and were thereby effectively foreclosed from the January 17th hearing. It clearly appears that the alleged “threats and terror” which the trial judge allegedly visited upon Skolnick at the November 14th hearing arose out of the following colloquy which occurred between the trial judge and Skolnick during a conversation concerning the Decalogue Society and the trial judge’s prior refusal to disqualify himself from hearing the matters filed in connection with the second amended complaint:

“THE COURT: What does the Decalogue Society have to do with it? It is a formal membership.
“MR. SKOLNICK: Yes, but you have made statements as a party. You have waded through almost 100 pages (defendant’s motion to strike the third amended complaint), and you found nothing wrong there. Then you looked at our complaint—
“THE COURT: I am not a party. I am ruling on a motion that has been presented. I agree with the legal principles in the motion to strike, and I am allowing that motion, and that is all there is to this case.
“MB. SABELAS: He (defendant) tells you that he wants the seal of the Decalogue Society. He is the one that brings it in, not us.
“THE COUBT: I am taking no cognizance of that society. That is no part of this lawsuit.
“MB. SKOLNICK: Well, he has made them such. He has made them such by his allegation that he has made contrary to our third amended complaint. I told Your Honor it would be better for you to disqualify yourself.
“THE COUBT: Why should I? I am a judge of this Court.
“MB. SKOLNICK: Yes, but you haven’t given us a fair hearing.
“THE COUBT: I would disqualify—
“MB. SKOLNICK: You haven’t. You have gone through 100 pages in this matter.
“THE COUBT: Don’t go too far. You are talking about me.
“MB. SKOLNICK: Your Honor—
“THE COUBT: If you don’t want to be locked up for contempt, you better watch your language when you talk to me.
“MB. SKOLNICK: Just a minute.
“THE COUBT: Watch your language.
“MR. SKOLNICK: I have done nothing to be discourteous. Just a minute. He has made false statements in all of his other litigation, and you made no objection to it, Judge, to that. Yet you say you find all kinds of faults with our facts and allegations. That does not seem fair. . . .”

The “threats and terror” which the trial judge is alleged to have visited upon Skolnick consequently appear to be no more than an admonition on the part of the trial judge that Skolnick either temper his remarks to the judge or face a contempt citation. It consequently appears that the claim raised in this context is without merit.

For these reasons the orders and judgment are affirmed.

Orders and judgment affirmed.

MCNAMARA and LYONS, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Renata Grabowski, Plaintiff-Appellee, v. John Grabowski, Defendant-Appellant.
    Gen. No. 51,692.
    First District, Third Division.
    April 25, 1968.

      Chester A. Lizak, of Chicago, for appellant.
    Raymond I. Suekoff, of Chicago (Stuart C. Katz, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff Renata Grabowski was granted a decree of divorce on February 18, 1964. By the terms of the decree, the defendant was ordered to convey his interest in the family residence to the plaintiff, thus terminating their joint tenancy and vesting sole ownership in the plaintiff. The decree went on to recite:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the question of permanent alimony be and is hereby reserved until further order of the Court.”

On June 10, 1964, the court, acting on plaintiff’s motion, ordered the defendant to pay permanent alimony of $20 per week. On June 9, 1966, defendant filed a petition alleging that the court was without jurisdiction to enter the alimony award and asking that the award be vacated and that alimony already paid pursuant to the order be refunded to the defendant. The petition was denied, attorney’s fees of $50 were awarded to the plaintiff, and the defendant now appeals.

Defendant contends that the conveyance of the family residence to the plaintiff constituted a property settlement in lieu of alimony, notwithstanding the provisions of the decree. He further argues that when parties agree to such a settlement in lieu of alimony, the trial court is thereafter deprived of jurisdiction to enter any postdecretal relief.

The Divorce Act provides that the court may enter any order for alimony and maintenance of the spouse and the care and support of children as may be reasonable and just; provided, however, that no such order subsequent to the divorce decree may be made in any case in which the decree recites that there has been an express waiver of alimony or a money or property settlement in lieu of alimony, or where the court by its decree has denied alimony. Ill Rev Stats, c 40, § 19 (1967).

The divorce decree in the instant case specifically states that the question of alimony was reserved and that the court retained jurisdiction for that purpose.

Error is also charged with respect to the award of $50 as plaintiff’s attorney’s fees. The court did not abuse its discretion in that regard, and the order is affirmed.

Order affirmed.

DEMPSEY, P. J. and SULLIVAN, J., concur.


text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. George Reid, Defendant-Appellant.
    Gen. No. 52,219. (Abstract of Decision.)
    First District, Third Division.
    May 2, 1968.
    Rehearing denied May 28, 1968.

      Royal E. Spurlark, Jr., of Chicago, for appellant;
    Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen and Howard C. Goldman, Assistant Corporation Counsel, of counsel), for appellee.
   Opinion by JUSTICE SULLIVAN. Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jacob H. Egner, Defendant-Appellant.
    Gen. No. 51,852. (Abstract of Decision.)
    First District, Second Division.
    May 7, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (John J. Van Zeyl and James J. Doherty, Assistant Public Defenders, of counsel), for appellant;
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Francis T. Carey, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE LYONS. Not to be published in full.


author: JUSTICE SULLIVAN

text:
    Robert E. Topel and Joseph L. Bialek, Plaintiffs-Appellees, v. Edward C. Porter, Individually and as Trustee Under Trust Agreement Known as Porter Realty Trust, Defendant. Price Brothers, Inc., a Corporation, Defendant-Appellant. Otis Elevator Company, a Corporation, Defendant, and Price Brothers, Inc., a Corporation, Counter-Plaintiff and Third Party Plaintiff-Appellee, v. Otis Elevator Company, a Corporation, Counter-Defendant, and Westinghouse Electric Corporation, Third Party Defendant-Appellant.
    Gen. No. 50,965.
    First District, Third Division.
    May 9, 1968.

      Hubbard, Hubbard, O’Brien & Hall, of Chicago (Alvin G. Hubbard, Reese Hubbard, and Frederick W. Temple, of counsel), and Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (John M. Moelmann and D. Kendall Griffith, of counsel), for appellants.
    Bunn and Bunn, of Chicago (Robert J. Rafferty, of counsel), for appellees. Andrew J. Farrell, of Chicago, for cross-appellee.
   On Rehearing

JUSTICE SULLIVAN

delivered the opinion of the court.

In this case defendant Edward C. Porter, individually and as Trustee under Trust Agreement known as Porter Realty Trust, obtained a directed verdict of not guilty at the end of the plaintiffs’ case, plaintiffs obtained money judgments against Price Brothers, Inc., judgment was entered in favor of defendant Otis Elevator Company upon the jury verdict, a judgment was entered in favor of counterdefendant Otis Elevator Company on the counterclaim of Price Brothers, Inc. against it, and third-party plaintiff Price Brothers, Inc. obtained a judgment upon a jury verdict against third-party defendant Westinghouse Electric Corporation.

This action arose out of an accident on the premises at 4301 West Madison St., Chicago. Those premises were owned by Porter Realty Trust, and Price Brothers, Inc. had been the exclusive tenant thereof for more than ten years prior to the accident. Under the tenancy Price Brothers was solely responsible for maintenance and repairs, although the owner paid for major or structural alterations.

On the property was a freight elevator which had been in the building since 1918. Plaintiffs, Topel and Bialek, were employees of Westinghouse Electric Corporation and, in that capacity, came on the premises to remove and repair a drum from the elevator.

Price Brothers had employed the services of Otis Elevator Company for some years prior to the accident. There was a service contract between the companies whereby Otis was to undertake the weekly maintenance of the elevator for a fee of $32 per month. This contract provided for only the small routine upkeep. If any larger items of service were called for, Otis was to notify Price Brothers and submit a price estimate therefor. The last written service contract between the two introduced into evidence covered the period of October 1, 1955, to July 31, 1956. However, it appeared that the agreement was continued until January 15, 1957, when Otis cancelled the contract.

In 1952 Otis reroped the safety device on the elevator, and, according to the ordinary business records, safety checks were made in 1952,1954 and 1955. The last safety check was in mid-1955. In December, 1956, Otis wrote to Price Brothers and recommended resocketing of hoisting ropes, testing of counterweight ropes and a safety-device check. The letter stated in part:

“Our experience has shown that it is advisable to test car safety devices annually, in order to determine if they are functioning properly. This cannot be determined by a visual inspection in the field and as we have no record of making safety tests on your elevator the past year, we recommend that such tests be made.”

Evidently no action was taken on that letter by Price Brothers. On January 15, 1957, Otis wrote to Price Brothers cancelling their service contract because Price Brothers had elected to have another company weld a cracked drum rather than have it replaced with a new one. According to Hiatt, Price Brothers’ chief engineer, from that date until the start of the work by Westinghouse, no one ever came on the premises to conduct a safety test on the mechanism. There was no evidence of routine servicing during that period (January-July, 1957).

There was no evidence as to what sort of safety tests were performed during the years 1952-1955, but witnesses stated that several types were possible: a broken-rope test, a free fall, an overspeed test, tests with loads and tests without loads. Any of these would allegedly have revealed misroping. There was also testimony that a visual inspection might not reveal such a defect inasmuch as the machinery was old and the younger men might not be familiar with it.

The contract for repair of the drum by Westinghouse was executed in March, 1957. The salesman for Westinghouse testified that during his preliminary talks with Price Brothers he was told that drum repairs were all that were necessary since they had a service contract with another company. However, in the letter of Hiatt to Westinghouse of March 13, 1957, the drum work was agreed to and there was a suggestion that they discuss a service contract to begin after the work was done. On July 16, 1957, a service contract was executed to take effect August 1,1957.

The repair work was to be done during the annual plant vacation and was to consist of removal, repair and reinstallation of the drum. From the evidentiary descriptions it appears that the elevator machinery ran from 2-3 feet below the bottom floor to a penthouse. The drum was located in the penthouse. The car was held up by six cables. Two ran from the car to the drum, two from the drum to the counterweights and two from the car to the counterweights. The safety device is activated by a safety governor at the top of the shaft. Under the car are three sheaves, two vertical and one horizontal. The horizontal one is in the middle and measures about 14 inches in diameter. There is a manilla rope running from the governor through one side sheave, passing around the center sheave and leaving the bottom of the car by the other side sheave. From there it runs up the side of the car to another small sheave at the top of the car and then down to a tension sheave at the bottom of the pit. These ropes all run on one side of the elevator. If the rope passes through the governor at too great a speed the governor stops the rope thereby activating wedges which go against one side of the safety jaws. The other side of the jaws clamp on the rails and stop the car.

July 15, 1957, was the first day that Westinghouse was on this job. The job boss, Hadden, and plaintiff Topel were on the premises. They went up to the penthouse, drilled through the roof and hung a chain fall which they planned to use to lower the drum to the car at the fifth level so they could then lower both drum and car to the ground. The next day plaintiff Bialek was also on the job. That day they disconnected the drum to car and drum to counterweight cables. Still connected were the governor to the safety rope and the car to counterweight cables. These cables alone would support about 60% of the weight of the car.

Before the cables were removed the men constructed a sling. The car-to-counterweight cables were clamped together in a two-gripper. This consists of two plates about 3 X 12 inches with a large eyelet at the top. The cables fit in between the plates which are then held together by studs with nuts tightened on them. Once the cables were securely clamped the sling was completed by wrapping another cable two or three times around a permanent beam in the penthouse, then down through the eyelet of the two-gripper and back up to the beam. That end was wrapped several times around the beam. The loose ends were then fastened with Crosby clips. These clips were U-shaped with the saddle arrangement for the cables to lie in. Once they are in place (in opposite directions to each other) the top is laid in place and nuts are tightened for pressure. Two clips were put on that day by Bialek and the elevator hung in the sling overnight. On July 17, 1957, Bialek added a third clip to the sling. This was done under the supervision of Hadden.

They then cleared out the car and attached a hoist machine to a cable sling from roof timbers. The drum measured about 3 feet in diameter and 4-5 feet in length, and weighed 2,000-3,000 pounds. The rated capacity of the safety device was 4,000 pounds. Bialek and Topel were in the car waiting to guide the drum into position onto a dolly in the car. Once that was done Hadden intended to attach another chain hoist to the car so that it could be lowered to the ground with the drum in it. The sling they had constructed would have to be removed before the car was lowered.

However, just as the drum touched the dolly the sling gave way, the safety device failed to operate properly, and the car dropped five floors to the pit. Plaintiffs there sustained the injuries which are the subject matter of this suit. Hadden testified that when he looked at the sling which had given way he found that the cable was unravelled halfway through and the core had been pulled off the end.

After the accident, according to a Westinghouse employee, the safety jaws were found locked open. An investigation of the incident a few days later indicated that the governor had functioned properly but that the rope underneath the car was improperly reeved so as to cause the safety jaws to work in a reverse direction. Most of the testimony indicated that the rope was crossed under the car.

There was conflicting testimony as to contributory negligence of the plaintiffs and negligence of Westinghouse. Other elevator men testified as to the precautions they would have taken in similar circumstances. One of these was additional slings. However, these would have had to be removed before the car could have been lowered to the ground. The same would have been true of additional Crosby clips. These witnesses indicated that three Crosby clips should have been sufficient for the sling that was constructed. Another suggestion was that the chain hoist by which the car was to have been lowered should have been attached prior to lowering of the drum into the car. It was also suggested that the workmen could have set the safety device manually while loading the drum into the car. Hadden testified that he doubted that he or any one man could have exerted the necessary force to do this. He went on to say that it might also have taken them several hours to unset it so as to be able to lower the car.

Several witnesses estimated the distance the car could have fallen freely had the safety device worked properly. These estimates ranged from 42 inches to 10 feet.

Plaintiffs brought suit against Porter (the owner of the property), Price Brothers and Otis. Price Brothers counterclaimed against Otis and brought a third-party action against Westinghouse. Defendant Porter was granted a directed verdict of not guilty at the end of all the plaintiffs’ evidence. The jury verdicts were in favor of plaintiffs and against Price Brothers in amounts of $45,000 (Topel) and $5,000 (Bialek); in favor of defendant Otis and against plaintiffs; in favor of counterdefendant Otis and against counterclaimant Price Brothers; and in favor of third-party plaintiff Price Brothers and against third-party defendant Westinghouse. The special interrogatory asked the jury to determine whether Price Brothers was guilty of active negligence and was answered “No.”

This court is presented with three appeals. Price Brothers is appealing from the judgment against it and in favor of plaintiffs. The points raised are that: as a matter of law the alleged negligence of Price Brothers was not the proximate cause of plaintiffs’ injuries; the plaintiffs were guilty of contributory negligence as a matter of law, and the verdict is contrary to the manifest weight of the evidence.

Westinghouse is appealing from the judgment over against it and in favor of Price Brothers. The points raised on appeal are that the complaint charged and the evidence showed Price Brothers guilty of active negligence thereby precluding this action over and making the judgment and answer to the special interrogatory contrary to the manifest weight of the evidence; that the trial court made several improper rulings on evidence consisting of a Westinghouse intraoffice memorandum; that the court erroneously refused to instruct the jury that active negligence on the part of Price Brothers would constitute a full defense to the third-party action, and that improper and prejudicial argument by Price Brothers’ counsel was allowed.

Finally plaintiffs (Topel and Bialek) are appealing, seeking reversal of the judgment in favor of Otis. This review is sought only if they are unsuccessful in maintaining the judgments against Price Brothers. The points raised in this appeal are that the verdicts are against the manifest weight of the evidence, and that Otis, as an independent contractor employed by Price Brothers, remained liable for the defective safety device after the cancellation of the service contract.

Price Brothers’ appeal will be considered first. The first contention is that the court erred in denying the motion by Price Brothers for directed verdict because, as a matter of law, the negligence of Price Brothers was not the proximate cause of the plaintiffs’ injuries and plaintiffs were guilty of contributory negligence.

Price Brothers cites many cases which give definitions of proximate cause and what may or may not be a third-party intervening cause which relieves the original party from liability. One case, Seith v. Commonwealth Elec. Co., 241 Ill 252, 98 NE 425, said on page 259:

“To constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence.”

None of Price Brothers’ cases, however, are factually applicable to this case.

Plaintiffs cited McGregor v. Reid, Murdoch & Co., 178 Ill 464, 53 NE 323, an action based on the alleged negligence of defendant in maintaining its freight elevator. Plaintiff there was an employee and was seriously injured when the cables pulled out of their sockets and, once the elevator began to fall, the safety device failed and the car fell from the third floor to the basement. The court discussed proximate cause and stated on page 470:

“It was the falling of the elevator that caused the injury, and it was caused to fall not alone by the pulling out of the cables from their attachments to the elevator frame, but also by the defective condition of the safety device, which prevented it from taking hold of the sides of the elevator shaft and holding the elevator in place. Appellant’s declaration is sufficient to sustain a finding based on either defect, or on both combined.
“Appellee insists that the pulling out of the cable ends from their fastenings was the proximate cause of the injury, and that no recovery can be had for what is supposed to be the remote cause of the accident, — the defective condition of the safety device. But this position is clearly untenable. The two causes operated together, and neither, alone, would have caused the elevator to fall, and if the pulling out of the cables was attributed to an accident or to the negligence of a third person, and still the elevator would not have fallen without the negligence of the appellee, appellee would be liable, for both causes, operating proximately at the same time, caused the injury .... And we have held that ‘where a party is injured by the concurring negligence of two different parties, each and both are liable, and they may be sued jointly or separately.’ ”

See also Seigel, Cooper & Co. v. Trcka, 218 Ill 559, 75 NE 1053.

This case falls well within the scope of the Mc-Gregor decision on the facts. The broken sling and the defective safety device acted concurrently to produce the plaintiffs’ injuries and neither, without the other, would have caused them. Furthermore, the jury was properly instructed as to the meaning of proximate cause and they must have determined that Price Brothers’ actions were sufficient to hold them liable. We cannot say as a matter of law that Price Brothers was not the proximate cause for there was sufficient evidence contrary to that position to at least make it a question of fact for jury determination.

Price Brothers also charges that the plaintiffs were guilty of contributory negligence as a matter of law. Ordinarily, the question of contributory negligence is one for the jury. The court in Pollard v. Broadway Cent. Hotel Corp., 353 Ill 312, 187 NE 487, a personal injury action, said on page 322:

“To authorize this court to say, as a matter of law, that there was such contributory negligence on the part of the plaintiff or that she was guilty of the lack of such ordinary care or caution for her own safety as to defeat her recovery, we must be able to say that all reasonable and unbiased men, acting within the limits prescribed by the rules of law, would agree that she was not, at and for a reasonable time prior to the injuries sustained by her, in the exercise of due care and caution for her own safety and that as a result thereof she contributed to the injuries received by her .... The question as to whether she was or was not in the exercise of ordinary care and caution for her own safety must be solved by a jury.”

In the record before us we see that the plaintiffs were new in the field of elevator maintenance. Topel had been in it for about a year and Bialek had been so for only a month and a half. They were directed by a job supervisor and took orders from him as to how the work was to be done. Neither was familiar with the type of machinery in the elevator at the premises, as it was an old one. They did not test the safety device prior to the accident, but they were not required to do so under the contract between Price Brothers and Westinghouse. The procedure they followed in constructing the sling was a normal one, according to expert testimony. Price Brothers argues because the procedure was a normal one and the sling failed one must reach the conclusion that plaintiffs negligently constructed the sling. It should be noted that Topel merely tightened the two-gripper, which did not give way. Bialek, a man of less than two months’ experience on the job, attached and tightened two Crosby clips the day before the accident. The sling held the elevator overnight, thus indicating (at least to plaintiffs) the work had been properly performed. A third clip was attached on July 17th. The fact that the sling later gave way could indicate that the clips or bolts were faulty just as reasonably as it could mean Bialek was guilty of contributory negligence in tightening the bolts. We cannot, by mere surmise, conclude that plaintiffs were negligent in constructing the sling.

While it is possible that additional precautionary measures could have been taken, such as attaching the chain hoist prior to the lowering of the drum onto the dolly, such decisions were not up to the plaintiffs but rather to their superior, and, furthermore, since they were new in the field they could not be expected to know all the intricacies of elevator repair. They were to follow reasonable directions, not manage the job. These factors were sufficient to have raised a question of fact as to whether the plaintiffs were guilty of contributory negligence, and that issue was determined in favor of plaintiffs by the jury.

Price Brothers finally contends that the verdict in favor of plaintiffs is against the manifest weight of the evideuce which showed that Price Brothers was not negligent, that the alleged negligence of Price Brothers was not the proximate cause of the plaintiffs’ injuries, and the plaintiffs were guilty of contributory negligence.

Price Brothers was in full control of the elevator, having been sole possessor of the premises for some ten years prior to the accident. They were told on several occasions (in letters from Otis) that annual safety tests were necessary and yet they failed to procure such a test from mid-1955 to July, 1957. The question of negligence was one for the jury. Price Brothers knew, or should have known, the necessity for the safety tests and yet made no effort to have them made. This alone constituted negligence and the jury’s conclusion was justifiable. There was also sufficient conflict in evidence on the questions of proximate cause and contributory negligence to form questions of fact to be determined by the jury, and we are unable to say the findings thereon were against the manifest weight of the evidence.

For the above reasons the verdict and judgment in favor of plaintiffs and against Price Brothers must be affirmed.

Westinghouse is appealing from the judgment over against it and in favor of Price Brothers. Its primary contention is that Price Brothers was guilty of active negligence as a matter of law and, therefore, the judgment and the answer to the special interrogatory are unsupported by any evidence or are at least contrary to the manifest weight of the evidence. The special interrogatory found that Price Brothers was not guilty of active negligence. Westinghouse now contends that this court should rule that the finding of no active negligence on the part of Price Brothers was against the manifest weight of the evidence.

It was shown above that Price Brothers was negligent in failing to maintain the elevator in proper working order and in neglecting to have the safety device thereon thoroughly checked. It was also shown that the breaking of the sling and the failure of the safety device acted together in causing the injuries to plaintiffs. Of particular import is the fact that Price Brothers was notified in December, 1956, that a safety test was in order and yet no effort was made on its part to have this done for the seven month period between the notice and the accident. In fact no servicing was shown during that period other than an unsuccessful repair of the drum. Price Brothers certainly knew that any elevator, and particularly one nearly forty years old, should have regular servicing and safety checks. Furthermore, it was shown that Price Brothers did not want any work done on the elevator until the annual plant vacation. Even then no mention was made of plans for a safety check.

Price Brothers refers us to Reynolds v. Illinois Bell Tel. Co., 51 Ill App2d 334, 201 NE2d 322; Trzos v. Berman Leasing Co., 86 Ill App2d 176, 229 NE2d 787, and Sargent v. Interstate Bakeries, Inc., 86 Ill App2d 187, 229 NE2d 769. While these cases discuss active and passive negligence and state that one tortfeasor may recover from another if the former is guilty of passive negligence and the latter is guilty of active negligence, they differ from the case at bar. In each of those cases the court had before it only the pleadings, as the evidence had not yet been heard. Those courts held that when it is possible that the proof at trial might show the original defendant to be guilty of only passive negligence and the third-party defendant or counterdefendant guilty of active negligence, the third party action or counterclaim should not be dismissed. In the instant case all of the evidence had been presented. It is the function of this court to review the findings based upon that evidence. We need not make suppositions as to what that evidence may show.

Price Brothers argues that all it did was fail to have the safety device tested a fourth time. Relying on Reynolds and Sargent, supra, it says that positive acts such as parking an automobile may constitute passive negligence and certainly, therefore, failure to have the safety device tested a fourth time was mere passive negligence. (The last test was made approximately two years prior to the accident although Otis had advised Price Brothers that a safety test should be made annually.) It is to be noted again that Reynolds and Sargent were decided on the pleadings and the court pointed out that the acts might have been active or passive and that determination had to await the evidence. The court in McFall v. Compagnie Maritime Belge (Lloyd Royal) S. A., 304 NY 314, 107 NE2d 463, a New York Court of Appeals case, discussed the matter of active-passive negligence and said on page 471:

“The only evidence in the record which would permit a jury to find Dow negligent was that indicating that the carbon tetrachloride was shipped in drums which were inadequate for the purpose intended and the jury so found. That act was not a mere failure to perform a nondelegable duty imposed by law which, under the circumstances should have been performed by another — it was an act of affirmative negligence.”

Thus Dow was held to be actively negligent for its failure to provide drums which were proper and safe for the purpose for which they were intended. That case was appealed after a trial on the merits. Analogously, Price Brothers failed to provide a proper safety device on the elevator machinery and thereby provided Westinghouse, a business invitee, with an unsafe place to work.

In discussing another third-party action in the same case the court in the McFall case said on page 472:

“While that is not always determinative, since either a fault of omission or one of commission may constitute active negligence. . . .” (Emphasis supplied.)

The distinction between active and passive negligence is a court made one and there is no single comprehensive definition thereof. To date the cases have been decided on the facts of each case. Price Brothers classifies its negligence as a mere failure to have a fourth safety test. However, it was a failure to do so after it was told of the necessity therefor. Furthermore, Price Brothers supplied Westinghouse and plaintiffs with an unsafe place to work and did not warn them of the possible dangers. Price Brothers argues that Westinghouse had the duty to perform the work safely but such duty did not include the responsibility of checking the safety device. That was solely the Responsibility of Price Brothers and was never assumed by Westinghouse or plaintiffs. We feel that this is proof of active negligence on the part of Price Brothers and that the answer to the special interrogatory is wholly inconsistent with the evidence presented at the trial. The conclusion expressed in the answer to the special interrogatory indicates “that the jury misunderstood the issues or disregarded the court’s instructions.” Freeman v. Chicago Transit Authority, 33 Ill2d 103, 106, 210 NE2d 191. There was no evidence presented from which the jury could have reasonably concluded that Price Brothers was guilty of only passive negligence. The answer cannot stand and the verdict based on it in favor of Price Brothers and against Westinghouse must be reversed.

Westinghouse also raised several procedural points in its appeal. However, in the circumstances of this case (insofar as we found Price Brothers guilty of active negligence as a matter of law, thus barring its recovery from Westinghouse on the action over) any prejudice against Westinghouse in the trial is rendered harmless by our reversal of the judgment.

Finally, plaintiffs, Topel and Bialek, filed an appeal seeking review of the judgment against them and in favor of Otis. This review was sought only in the event that plaintiffs were unsuccessful in maintaining their judgments against Price Brothers. Because that judgment has been affirmed we need not consider the merits of plaintiffs’ appeal.

The judgment in favor of plaintiffs and against Price Brothers is affirmed. The answer to the special interrogatory finding Price Brothers not guilty of active negligence is set aside. The judgment in favor of Price Brothers and against Westinghouse is reversed.

Affirmed in part and reversed in part.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. Robert Westphalen, Defendant-Appellant.
    Gen. No. 51,834.
    First District, Third Division.
    May 9, 1968.

      Benjamin Shapiro, of Chicago (Harry G. Fins, of counsel), for appellant.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin, Assistant Corporation Counsel, and Harry H. Pollack, Special Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The defendant was charged with eight building code violations relating to an apartment building at 3940 South Wentworth Avenue, Chicago, Illinois. He pleaded not guilty, waived a jury and proceeded to trial. During the course of the trial the plaintiff made an oral motion to nonsuit Count 1 of the complaint, which motion was granted over objection. The defendant was found guilty on the remaining Counts 2 through 8, and fined $250 and costs. He appeals from that judgment.

Three charges of error made by the defendant merit consideration: (1) that the complaint fails to state a cause of action; (2) that the court erred in nonsuiting Count 1 after the trial was in progress; and (3) that the defendant was not proven guilty on Counts 2 through 8 by a clear preponderance of the evidence.

The complaint alleges building violations as follows:

COUNT CODE SECTION FAILED TO (OR DID)

1 43-1 78-8.2 78-10.1 & 2 Deconvert building to its original plan or construction or comply with the code provisions and requirements for converted or altered structures.

2 67-4 78-15.1 & 4 Provide additional means of egress for the following location : 2nd fir. rear apt.

3 52-2 Provide walls or partitions separating each dwelling from all other parts of building with materials having not less than one (1) hour fire resistance — 1st and 2nd fir. between apts.

4 78-17.5 78-3a Repair or replace defective or missing members of porch system — 2nd fir. catwalk.

5 78-17.2e Place the surfaces of walls and ceilings in a clean, smooth and tight condition —Throughout.

COUNT CODE SECTION FAILED TO (OR DID)

6 78-17.2a & b Repair or rebuild defective floors — Throughout.

7 78-17.3b Repair or replace defective window sash — Throughout.

8 78-17.3 Repair or replace defective 78-3a window frame — Throughout.

With respect to the first contention, defendant argues that the complaint failed to state a cause of action on any of the counts therein, and contends that a substantial defect of this nature may be raised for the first time on appeal. The plaintiff accepts this general statement of the law, but points out that nowhere does defendant show why the complaint does not state a cause of action. We gather from the explanation given on oral argument that defendant objects to the alternative phrase, “FAILED TO (OR DID),” which appears in the heading of the complaint, in that it creates an ambiguity.

In a suit for a violation of a municipal ordinance civil rules of procedure are applicable and the complaint need not be drawn with the precision of an indictment or information. City of Chicago v. Berg, 48 Ill App2d 251, 199 NE2d 49; Village of Maywood v. Houston, 10 Ill2d 117, 139 NE2d 233. A complaint ambiguous or deficient in some respects but which otherwise states a cause of action is subject to objection properly and timely made. If no objection is made, the objection is deemed to have been waived. City of Chicago v. Berg, supra; City of Chicago v. Campbell, 27 Ill App2d 456, 170 NE2d 19; Ill Rev Stats, c 110, § 42(3) (1965). The only question then is whether a cause of action is stated.

The City’s complaint described the particular property and stated the precise sections of the Code allegedly violated.' This was followed by a statement of each violation. The mere fact that one of the alternatives in the heading, “FAILED TO (OR DID),” is not stricken does not render the complaint meaningless because it is clear beyond cavil that the words “FAILED TO” are applicable and that the words “(OR DID)” are not. Defendant was'reasonably informed of the nature of the alleged violation.

Defendant next contends that Count 1 of the complaint was erroneously nonsuited in that the plaintiff failed to comply with the requirements of section 52(1) of the Civil Practice Act with respect to voluntary dismissals. That section provides that once a trial has commenced, the plaintiff may dismiss his action without prejudice only on terms fixed by the court (a) upon filing a stipulation signed by the defendant consenting thereto, or (b) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. Ill Rev Stats, c 110, § 52(1) (1965). An oral motion alone is insufficient to comply with the requirements for consent after commencement of the suit. Gunderson v. First Nat. Bank, 296 Ill App 111, 16 NE2d 306; Doody v. Doody, 28 Ill2d 191, 190 NE2d 734. In the instant case the defendant did not stipulate to the nonsuit and the plaintiff failed to support its motion by affidavit or other proof, as required by statute. This, the defendant argues, deprived him of the protection of res judicata in that the plaintiff was thereafter free to renew the action on Count 1 notwithstanding the aborted hearing on the merits thereon. Plaintiff’s motion for nonsuit should have been denied.

The plaintiff, having commenced this action and proceeded to trial, is bound to prosecute the action to its conclusion or to seek a voluntary dismissal in the manner required by the Practice Act. Count 1 therefore must be reinstated and the plaintiff must proceed with the trial thereof or it should be dismissed by the court.

The final point to be considered is defendant’s contention that the City failed to prove the alleged violations by a clear preponderance of the evidence. The City concedes that no evidence was presented as to Count 3 relating to fire resistant walls or partitions, and that count should be dismissed. We proceed to consider whether the remaining counts were proved as required.

In Count 2 the defendant is charged with failing to provide two exits for the second floor rear apartment, as required by the Municipal Code. Chicago, Illinois, Municipal Code, § 67-4 (1949). Defendant contends that either the apartment had two exits or that it is within an exception set forth in the ordinance. The building inspector, testifying for the City, stated that the second-floor rear apartment has two separate doors leading to the exterior. One door opens onto a rear porch and the other opens into a catwalk which leads to the same porch. A single stairway leads from the porch to the ground. The City contends that since both doors lead to the same stairway, there is only a single means of egress and hence only one exit. This theory is supported by the definition of exit contained in the ordinance, from which it is clear that a complete exit consists of such components as may be required to provide unobstructed and continuous egress from the dwelling unit to the ground. Chicago, Illinois, Municipal Code, § 67-2 (a) & (e). In the instant case the doorways and other exit connections culminate in the single stairway and taken together form a single exit.

We proceed to the contention that the dwelling unit in question was an exception to the general regulation and that only one exit was necessary. The exception on which the defendant relies (Municipal Code, supra, § 67-4(e)) provides as follows:

“In Multiple Dwellings, one-exit door shall be permitted to a public corridor from a dwelling unit having not more than five habitable rooms and having an area not exceeding 1,000 square feet.”

No evidence was adduced at the trial as to the area of the dwelling or the number of rooms therein. When a party seeks to avoid the general application of a statute or ordinance and seeks to establish his case as within an exception thereto, it is incumbent upon him to prove those facts which would bring him within the defined exception. In other words, a party wishing to benefit by an exception must prove that he comes within it. City of Chicago v. Elmhurst Nat. Bank, 35 Ill App2d 383, 183 NE2d 171; People v. One Mechanical Device, 9 Ill App2d 38, 132 NE2d 338. Defendant has not shown that the building is within the exceptions set forth in the ordinance.

This leaves Counts 4 through 8, in which the City charges defendant with five maintenance violations. Defendant contends that the City’s evidence is meaningless and does not prove him guilty by a clear preponderance of the evidence. In only one of these instances did the City offer evidence of any specific fact which would constitute an ordinance violation. Count 5 alleges a violation of section 78-17.2 (e) of the Municipal Code which reads as follows:

“Plaster, paint, and all other surface materials shall be of such character as to be easily cleanable, and are reasonably smooth, clean and tight.”

The building inspector testified that the walls and ceilings had flaking paint and the only evidence offered in response was the defendant’s testimony that the condition of the surface of the walls and ceilings at 3940 South Wentworth was in “A number one shape.” In view of this conflicting testimony the court was asked to determine the credibility of the witnesses. The testimony of the City’s witness, if believed, was sufficient to support a finding that the ordinance had been violated. The court so found and the finding of fact is not contrary to the manifest weight of the evidence. The judgment as to Count 5 is affirmed.

With respect to the remaining Counts 4, 6, 7 and 8, the City’s witness testified only that the porch, floors, window sashes and frames were “defective,” and although that term denotes a fault, flaw or insufficiency, it is a vague conclusion when used to describe the physical condition of a structure as related to the requirements of a building code. The applicable provisions of the Municipal Code are specific and set out the physical characteristics which are to be considered in determining whether or not a structure is to be deemed defective. In the absence of any testimony as to such specific facts or a description of the actual conditions, the statement that they were “defective” is a conclusion, insufficient in itself to support a finding of guilty on the counts in question, and accordingly the judgment as to those counts will be reversed.

Judgment of guilty is affirmed as to Counts 2 and 5 and is reversed as to Counts 3, 4, 6, 7 and 8. The cause is remanded for further proceedings with regard to Count 1 in accordance with the views hereinbefore expressed and for the assessment of fines as to Counts 2 and 5, and for such other and further proceedings as are consistent with the views herein expressed.

Judgment affirmed in part, reversed in part, and cause remanded with directions.

DEMPSEY, P. J. and SULLIVAN, J., concur.