Ash v. Frazee, A--728
| Decision Date | 28 October 1955 |
| Docket Number | No. A--728,A--728 |
| Citation | 37 N.J.Super. 542,117 A.2d 634 |
| Parties | Paul ASH, Eva L. Ash, and Photo Process Copy Co., a corporation of New Jersey, Plaintiff-Appellants, v. David FRAZEE, Jr., and Gertrude V. Frazee, Defendants-Repondents. |
| Court | New Jersey Superior Court — Appellate Division |
Clarkson S. Fisher, Long Branch, for appellants (Edward F. Juska, Long Branch, attorney).
John J. Gibbons, Newark, for respondents (Crummy, Consodine, Gibbons & O'Neill, Newark, attorneys).
Before Judges GOLDMANN, FREUND and CONFORD.
GOLDMANN, S.J.A.D.
Plaintiffs appeal from a summary judgment entered by the Law Division without costs in favor of defendants. The judgment must be affirmed.
The original complaint contained a single count for relief. Venue was improperly laid in Monmouth County and the Newark premises involved incorrectly designated. Defendants moved from summary judgment and, in the alternative, for change of venue. By their answering affidavit plaintiffs admitted error in the complaint and orally sought leave to amend it to correct the address. Such leave was granted, as was the motion for change of venue; summary judgment was denied. Subsequently, plaintiffs served an amended complaint not only changing the address, but also adding an additional count. Defendants' motion for summary judgment was addressed to this complaint.
We need not consider the first count which is based upon plaintiffs' lawful use and occupancy of the premises under an agreement with defendants. This allegation is demonstrably false because plaintiffs' own affidavit shows there was no such agreement with defendants, but rather that the corporate plaintiff had an informal arrangement with Shaw Blue Print Machine Co., Inc., the only lawful tenant, holding under a ten-year lease given by defendants, and a company known as Acme Reproduction and Drafting Supply Inc. It is not denied that the lease forbids any sublease or assignment. Plaintiffs therefore are either tenants at will or by sufferance, or merely trespassers, and have been denied access to the premises by the trustee of the Shaw company appointed August 30, 1954 by the United States District Court in corporate reorganization proceedings involving Shaw. It is unnecessary to deal further with the first count; if plaintiffs have any valid cause of action, defendants' affidavits demonstrate that they are proceeding against persons not responsible for the alleged harm.
We proceed to analyze the second count of the complaint based upon malicious interference with plaintiffs' business. It first alleges that plaintiffs have been carrying on a gainful photo-reproduction business at the premises in question since November 15, 1952, during which time they lawfully used and occupied the premises. The complaint then states that on or about August 23, 1954 defendants 'with intent to injure the plaintiffs in their business and deprive them of the passive (sic) enjoyment thereof and of the profits and advantages to be gained thereby, knowingly, wilfully, unlawfully and maliciously interfered with the plaintiffs' business to such an extent that it came to an end and have since that date prevented the plaintiffs from making the profits which they would have received by the operation of their business.'
If, by this all-inclusive statement, plaintiffs mean to say that interference with their business was the result of their inability to enter the premises, then the count must fall since their inability to do so was occasioned by the act of some one other than defendants, viz., the trustee in federal reorganization proceedings, so that plaintiffs have manifestly shown no right to continue to occupy the premises. A second construction of the allegation, and the one now urged by plaintiffs, is that the count sets up a distinct new cause of action apart from their inability to enter the premises.
Considering the second count in that light, defendants were entitled to summary judgment. Not only did plaintiffs bring in a new cause of action, completely contrary to the leave to amend which they sought, but they have failed to state a cause for malicious interference properly. All that the above-quoted allegation states is that defendants, on or about August 23, 1954, committed a tort by virtue of their malicious interference with plaintiffs' business. Other than the date, there is not a single fact alleged. The offense claimed as a basis of action is stated merely as a legal conclusion. R.R. 4:8--1 requires that a pleading which sets forth a claim for relief shall contain 'a statement of the facts on which the...
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