Bd. of Com'rs of Borough of Vineland v. Maretti

• Decision Date: 06 May 1922
• Docket Number: No. 50/653.,50/653.
• Parties: BOARD OF COM'RS OF BOROUGH OF VINELAND v. MARETTI.
• Court: New Jersey Court of Chancery

117 A. 483

BOARD OF COM'RS OF BOROUGH OF VINELAND

v. MARETTI.

No. 50/653.

Court of Chancery of New Jersey.

May 6, 1922.

(Syllabus by the Court.)

Bill by the Board of Commissioners of the Borough of Vineland against Armand G. Maretti, for discovery and accounting. Motion to strike out bill overruled, and answer permitted to stand, with leave to plaintiff to apply for an order for further answer in certain particulars.

Louis H. Miller, of Vineland, for the motion.

Thomas G. Tuso, of Vineland, and John W. Wescott, of Camden, opposed.

WALKER, C. The bill is one for discovery and accounting. The defendant moves to strike it out for sundry reasons, among them, that there is no municipal corporation bearing the name, "the board of commissioners! of the borough of Vineland." The motion to strike is coupled with an answer to be used as a defensive pleading in case the motion is denied. Counsel for defendant says in his brief that defendant, answering under a misapprehension, admitted that the complainant, by the above name, is a municipal corporation, but prays leave to amend his answer in that behalf, so that he may insist upon his motion. This leave will be denied upon the principle that the court will not grant leave to plead disfavored defenses after time for answering has expired (Campion v. Kille, 15 N. J. Eq. 476; Vandeveer's Adm'r v. Holcomb, 22 N. J. Eq. 555), nor grant leave to amend answers already filed so as to raise such defenses.

Campion v. Kille, supra; Boehme v. Rail, 51 N. J. Eq. 541, 546, 26 Atl. 832.

Counsel for complainant informs the court that the corporate name formerly was "mayor and council of the borough of Vineland"; that it adopted the commission form of government and changed its name to "borough of Vineland" by filing an appropriate certificate; and insists that under the authority of Jefferson v. Hotel Cape May, 82 N. J. Law, 32, 81 Atl. 349, the unnecessary words, viz. "the board of commissioners of," may be stricken out. There, on a plea of misnomer, an amendment was made changing the name of a corporate defendant, and this by the common-law power to amend in courts of law. Dinsmore v.' Westcott, 25 N. J. Eq. 302, is in point. There a mistake in antedating a subpoena in chancery, when in fact it had not been issued before the filing of the bill, was corrected. Amendments in equity are allowed with great liberality (Fodor v. Kunie, 92 N. J. Eq. 301, 112 Atl. 598), and they are not the creature of statute, but are allowed as a matter of inherent power in the court. Our chancery act (Comp. Stat, p. 438, § 77) recognizes this by simply providing that all amendments shall be made with or without costs, and on such equitable terms as the court shall direct.

The words "the board of commissioners of" will be stricken out, and the complainant's corporate name will be amended accordingly, and hereafter the papers in this cause must be correctly entitled, viz. "borough of Vineland."

Another ground of objection to the bill as stated in the notice to strike is that it was not signed by counsel. This, however, was not insisted upon the argument, and the solicitor was permitted to sign the bill as counsel, which he has done, and the pleading is now unobjectionable for that reason.

We come now to the meritorious question involved on this hearing.

The bill is one for discovery and accounting. It alleges that for at least five or six years last past the defendant was borough clerk of the complainant, and had entire and exclusive charge, control, and management of the clerical and bookkeeping departments of the borough; that during that period he engaged in the business of buying and selling coal, either individually or in the name of some company, partnership, or association under his control, and did a large and lucrative business therein; that during the World War, as clerk and manager of the water and electric light plants of the borough, he purchased a large number of carloads of coal in the name of the borough, on the pretense that the coal was needed for the borough's utilities, but which he caused to be diverted to his own customers for his private lucre and gain; that during that period he, with funds of the complainant, purchased books, bookcases, and other articles, all of which he disposed of by selling, giving away, or converting to his own use; that the books of account kept by defendant during the period show that large quantities of coal were purchased and paid for by complainant, which were greatly in excess of the needs and uses of the complainant, but that those accounts were kept in such an uncertain, vague, and indefinite manner that they fail to show how much of the coal was diverted to others, or how much was charged to and paid for by it; that defendant during such period kept a set of books separate and distinct from complainant's books, which private books show the defendant's dealings in coal in which complainant is interested, etc. The prayer is for a discovery of and concerning the matters above set out, and for an accounting to the complainant for the profits made by the defendant in such dealings in coal, and for the books, bookcases, and other articles converted and disposed of as above mentioned. The defendant filed a pleading labeled: "Objections to bill of complaint, and answer to the bill." He submits that the bill discloses no cause of action, and that the same should be dismissed, and that he should not be required to make answer, and prays that the question of law may be heard and disposed of before the hearing of the principal case, as provided in rule 68. This is a mistake, as rule 68 applies only to defenses heretofore presentable by plea; and the objections to the bill in this case are tantamount to demurrer. This comes under rule 67, which provides that a motion addressed to a pleading, on the ground that it discloses no cause of action, defense, or counterclaim, may be, on hearing, ordered to stand over until the hearing of the cause. The defendant prays that he may be permitted to file the answer without waiver of any of the objections to the bill. He has had the benefit of this, while perhaps he is not entitled to it, because he had filed an answer without awaiting disposition of his motion to strike out, which motion will now be considered.

The objections to the bill, eight in number, upon which the motion to strike is grounded, are, generally, that it is not a purely civil bill, but is a criminal proceeding, because it seeks discovery and accounting for moneys and property alleged to have come to the hands of the defendant by and through divers criminal acts for which defendant would be liable to punishment in criminal proceedings; that the bill demands that defendant be held to answer for criminal offenses without presentment or indictment of a grand jury; and upon the basis of such charges complainant seeks to recover from defendant divers sums of money without first instituting Criminal proceedings to punish defendant; and that such a bill does not lie.

This motion to strike out is one under the rule of court 67, substituted for a demurrer under the former practice. Bigelow v. Old Dominion, etc., Co., 74 N. J. Eq. 457, at page 462, 71 Atl. 153. And a demurrer to a bill in equity admits every charge which is well pleaded. Goble v. Andruss, 2 N. J. Eq. 66; Force v. Dutcher, 17 N. J. Eq. 165; Camden Safe Deposit & Trust Co. v. Dialogue, 75 N. J. Eq. 600, 72 Atl. 358; Swinley v. Force, 78 N. J. Eq. 52, 78 Atl. 249.

Counsel for defendant argues that the bill is vague and indefinite as to the time of the commission of the acts complained of, and that the bill should be dismissed because it does not appear upon its face when the alleged acts were committed. This point, however, is not specified as a ground of objection to the bill, and therefore need not be noticed. In passing, however, it may appropriately be observed that the reason why complainant does not allege dates apparently arises from the fact that it has none, and that it is therefore impossible to allege any, and that is one of the very matters of which discovery is sought. Probably no bill for discovery ever set forth circumstantially and in detail all the facts concerning which discovery was sought, for, if all the facts were within complainant's knowledge, there would be no occasion for discovery. A complainant has as much right to discovery of dates as of any other matter or thing.

In Howell v. Ashmore, 9 N. J. Eq. 82, 57 Am. Dec. 371, it was held that, when a defendant is charged with fraud, it is the peculiar jurisdiction of the court of chancery to compel such fraud-doer to disclose the facts alleged, and all the circumstances attending it, in order that the court may determine whether those circumstances are a fraud or not.

As the suit is for recovery of property tortiously taken by defendant, the bill lies because of the fraud involved, especially as defendant occupies a fiduciary position. 1 C. J. p. 623, § 70.

But equity will not compel a discovery in aid of a criminal prosecution, or of a penal action, or of a suit in its nature partaking of such a character, for it is against the genius of the common law to compel a party to accuse himself; and it is against the principles of equity to aid in the enforcement of penalties or forfeitures. Story, Eq. Jur. (14th Ed.) § 1942. The suit at bar, however, is not one for discovery in aid of a criminal prosecution or a penal action, nor does it seek to subject the defendant to any penalty or forfeiture. It is a bill for an accounting for moneys alleged to have been made by defendant and appropriated to himself which acting as the agent of the complainant in respect of the matters concerning which his acts are declared to be fraudulent, and those acts are by the motion to strike out admitted to be true for the purpose of the argument and decision of the question before me. The discovery sought is in aid of this purely...