Cirese v. Spitcaufsky

• Decision Date: 08 December 1952
• Docket Number: No. 21767,21767
• Citation: 253 S.W.2d 512
• Parties: CIRESE v. SPITCAUFSKY et al.
• Court: Missouri Court of Appeals

Page 512

253 S.W.2d 512

CIRESE v. SPITCAUFSKY et al.

No. 21767.

Kansas City Court of Appeals, Missouri.

Dec. 8, 1952.

David M. Proctor and John J. Cosgrove, Kansas City, for appellants.

J. K. Owens and I. I. Ozar, Kansas City, for respondent.

SPERRY, Commissioner.

Plaintiff J. C. Cirese, was the owner of two brick buildings located at 108 and 110 West Third Street, Kansas City, Missouri, which defendants sought to raze because dangerous to the public.

Defendants, Frank L. Lang and Reed McKinley, officers of Kansas City, Missouri, acting in their official capacity, entered into contract whereby defendants Charles and Hyman Spitcaufsky, contractors, were employed to raze said buildings.

Plaintiff instituted this suit against the above named defendants, whereby he sought to enjoin them against further destruction of the buildings, (the Spitcaufskys had begun to raze the buildings) and he also sought a judgment for damages, both actual and punitive.

After preliminary writ had issued, Kansas City, Missouri, a municipal corporation, filed appropriate pleadings seeking to be made a party defendant, alleging that the two first named defendants were its officers and agents and acting for it; that the last named defendants were acting under a contract made on behalf of the city, under and by virtue of Section 302(d) of Ordinance 9519, of Kansas City; and that petitioner 'believes that the constitutionality of this ordinance is being attacked and challenged by the plaintiff.'

Pursuant to said petition the city was made a party defendant. Its counselor and his assistants filed separate answers for Kansas City, Lang and McKinley, alleging that said defendants entered into a contract with the Spitcaufskys whereby the latter agreed to raze said buildings; that the contract was made under the provisions and authority of the above mentioned ordinance; and that Section 302(d) of said ordinance reads as follows:

'(d) Whenever any building or other structure has become so damaged by wind, fire, deterioration or other cause or causes and is in such condition, in the opinion of the Building Commissioner, as to constitute the same an immediate hazard dangerous to life, limb or property, or to the public, because of immediate danger of collapse, the Building Commissioner shall cause the removal and demolition thereof forthwith and without notice.'

Plaintiff filed reply to the above pleadings, in the nature of a general denial, and further answering, alleged: '* * * the ordinance, and particularly that portion thereof as set out in paragraph 3 * * * is unconstitutional and void * * *.?'

The city counselor and his assistants also filed separate answer for the Spitcaufskys, wherein it was admitted that 'in accordance with law they entered on plaintiff's property for the purpose of razing said buildings so as to make them safe for the public using the streets, sidewalks and public alleys adjacent thereto.'

Plaintiff moved for judgment on the pleadings which motion was overruled. He then filed 'Amended Petition; action for equitable relief and damages,' wherein it was charged that all of the above-mentioned defendants, except the Spitcaufskys, had conspired among themselves, in violation of plaintiff's rights and contrary to the constitution of the State of Missouri and of the United States, to deprive plaintiff of his ownership, right, title and interest in the property herein-mentioned, including valuable personal property located in said buildings; and that, pursuant to said conspiracy and to accomplish its purposes, they had wantonly and maliciously induced the Spitcaufskys to enter upon and demolish the buildings and carry off parts thereof together with other...