Attorney Gen. v. Foster Wheeler Corp..
| Decision Date | 07 September 1943 |
| Docket Number | 141/165. |
| Citation | 33 A.2d 699 |
| Parties | ATTORNEY GENERAL v. FOSTER WHEELER CORPORATION et al. |
| Court | New Jersey Court of Chancery |
Suit in equity by the State, by the Attorney General, against the Foster Wheeler Corporation, the Commercial Trust Company, as executor under the will of Orray E. Thurber, deceased, and another, to impose an equitable lien on a fund in defendant trust company's possession to secure payment of rent to the State under a lease of riparian rights in under-water lands and to recover the amount of unpaid rents or nullify a conveyance of the uplands to named corporation. On named defendants' motion to strike the bill of complaint.
Order striking out the bill in its relation to moving defendants advised.
1. Ordinarily, the filing of affidavits in support of a motion to strike a bill upon the ground that it fails to state a cause of action as ineffectual.
2. The utility and efficacy of the modern motion are similar to those of the demurrer in the former practice. For the purposes of the motion, it carries with it an acknowledgment of the truth of all the material and well pleaded factual charges of the bill, but declares their insufficiency; for some reason apparent on the face of the bill, to invoke equitable jurisdiction or relief.
3. Every bill in equity is in a sense a bill of discovery in that it calls upon the defendant to make a full answer thereto.
4. Where a bill praying for ultimate relief and for incidental discovery fails to disclose that the complainant is entitled to the (main) relief, the bill cannot be sustained as one solely for discovery.
David T. Wilentz, Atty. Gen. (by Robert Peacock, Asst. Atty. Gen.), for the State.
Lum, Fairlie & Wachenfeld, of Newark, for Foster Wheeler Corporation,
Anderson, Rugge & Coleman, of Jersey City, for Commercial Trust Co., executor, etc.
JAYNE, Vice Chancellor.
The defendants, Foster Wheeler Corporation and Commercial Trust Company, executor under the will of Orray E. Thurber, deceased, assert that the amended bill filed in the present cause is deficient in alleging an equitable cause of action against either of them, and they insist that they should not be obliged to answer.
In resisting motions of this character, frequently, as here, affidavits are presented on behalf of the complainant verifying and indeed amplifying and supplementing the factual charges of the bill. Where the motion rests upon the ground that the bill fails to state a cause of action, the submission of such affidavits is ineffectual, save perhaps in most unusual circumstances. Riley v. Hodgkins, 57 N.J.Eq. 278, 41 A. 1099; Brown v. Gaskill, 74 N.J.Eq. 620, 70 A. 665; Belmont Lumber Co. v. Friedman, 105 N.J.Eq. 284, 147 A. 583.
The utility and efficacy of the modern motion are similar to those of the demurrer in the former practice. The general demurrer in Chancery carried with it, for temporary purposes, an acknowledgment of the truth of all the material and well pleaded factual charges of the bill and declared that, as set forth in the bill, they are insufficient to enable the complainant to proceed or to oblige the defendant to answer; or that for some reason apparent on the face of the bill, or because of the omission therein of some essential matter, the bill fails to adequately invoke equitable jurisdiction or relief. The demurrer prayed judgment whether the defendant should be compelled to answer the complainant's bill.
The present motion has a precisely similar function. The material matters of fact adequately charged in the bill are for immediate purposes admitted. A verification of them is accordingly needless. The inquiry is confined to the factual and legal substance of the bill itself, and the bill cannot be reinforced by the introduction by affidavit of external facts.
An abridged statement of the facts charged in the bill in this cause suffices to display the point of contention. On June 26, 1913, one Augustus W. Colwell obtained from the State of New Jersey a lease of riparian rights in lands in Staten Island Sound in front of his property situate in the borough of Carteret. The Mexican Crude Oil and Asphaltic Products Company, a corporation organized under the laws of South Dakota and privileged to conduct business in our state, subsequently acquired the uplands and also an assignment of the lease. Although the charter of that company expired by limitation on December 2, 1936, it nevertheless continued to transact business in New Jersey until a recent date.
One L. L. Branch was appointed in South Dakota to serve as trustee of the company, and an order was made on December 24, 1942, in the Circuit Court (Sixth Judicial District), Hughes County, South Dakota, authorizing and directing the trustee to grant and convey the uplands owned by the company at Carteret, New Jersey, at private sale to Foster Wheeler Corporation for the sum of $52,000.
The order authorizing the sale contained the following instructions concerning the distribution of the proceeds:
‘It is further ordered that L. L. Branch, as trustee be and he is hereby empowered to pay over the proceeds of said sale as follows:
‘$2,600 to C. B. Snyder Realty Co., as brokerage commission in connection with the sale;
‘$2,500 to Scribner & Miller, attorneys, for services rendered to the company in the past and in connection with this sale, including all expenses incidental to the sale such as United States revenue stamps and the costs and expenses of this proceeding.
‘$6,000 to Nils B. Hersloff in reimbursements of advances made by him to the corporation for maintaining the riparian rights leased from the State of New Jersey;
‘$40,900 to Estate of Orray B. Thurber (or whatever may be the balance after apportioning taxes, water, insurance and riparian rights) in full satisfaction and discharge of its mortgage upon the premises on which the sum of $50,000 is due and owing together with interest thereon for several years last past.’
In pursuance of the terms of the order, the trustee executed a deed conveying the premises to the Foster Wheeler Corporation for the stated consideration, and made distribution of the purchase price as instructed.
On December 28, 1942, the Circuit Court in South Dakota made an order confirming the sale and approving the distribution by the trustee of the proceeds. The pertinent paragraphs of the order are:
‘Now therefore, said sale is hereby approved and all acts of L. L. Branch, trustee, in making this sale are hereby confirmed.
‘It further appears that pursuant to said Order of Sale L. L. Branch did on the 24th day of December, 1942, pay over the proceeds of said purchase price to the following persons and in the following amounts:
‘$2,600 to C. B. Snyder...
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