Di Cristofaro v. Laurel Grove Memorial Park

• Decision Date: 08 January 1957
• Docket Number: No. A--529,A--529
• Citation: 128 A.2d 281,43 N.J.Super. 244
• Parties: Louis DI CRISTOFARO, Nicholas Christopher and Louis Di Cristofaro, Jr., partners, t/a Paterson Monument Co., Plaintiffs-Appellants, v. LAUREL GROVE MEMORIAL PARK, Cresthaven Memorial Park, Inc., Defendants, and George Washington Memorial Park, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 244

43 N.J.Super. 244

128 A.2d 281

Louis DI CRISTOFARO, Nicholas Christopher and Louis Di Cristofaro, Jr., partners, t/a Paterson Monument Co., Plaintiffs-Appellants, v. LAUREL GROVE MEMORIAL PARK, Cresthaven Memorial Park, Inc., Defendants and George Washington Memorial Park, Defendant-Respondent.

No. A--529.

Superior Court of New Jersey Appellate Division.

Argued Nov. 5, 1956.

Decided Jan. 8, 1957.

Irving L. Hodes, Newark, for plaintiffs-appellants (Hodes & Hodes, Newark, attorneys).

James A. Major, Hackensack, for defendant-respondent.

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

CONFORD, J.A.D.

Plaintiffs are monument makers in Paterson. They brought this action in the Chancery Division against the three defendants, incorporated associations operating cemeteries in Passaic and Bergen Counties, to enjoin certain practices which are alleged to be illegal and to interfere with the business pursuits and opportunities of the plaintiffs. The defendant George Washington Memorial Park moved to strike the complaint as not setting forth 'facts upon which relief can be granted,' and, in the alternative, for a severance and for a more definite statement of plaintiffs' claim. The trial court granted the motion first stated, on the ground that plaintiffs had no status to complain of the rules and regulations of the cemetery corporations.

The complaint is a vague and discursively stated recital, in ten paragraphs, which may be summarized as follows: Plaintiffs are in the business of fabricating and installing markers and monuments for graves and their market area includes the cemeteries here involved. '* * * the plaintiff has and can secure business from lot owners of said cemeteries.' The defendants 'have prevented and prohibited' plaintiffs from getting business from lot owners in their cemeteries by 'arbitrary and unreasonable rules and regulations which, in effect, preclude the plaintiff and other dealers' from installing memorials, monuments, etc. and have reserved 'only unto themselves' the right to sell and erect such objects. By 'unfair trade practices and advantages' defendants have 'deprived the plaintiffs of an opportunity to secure legitimate business' from lot owners, have conducted legally unpermitted corporate activities and otherwise 'conducted themselves illegally and in an improper manner so as to cause great loss of business unto the plaintiffs.' The defendants by 'unreasonable' rules and regulations have restricted and prohibited competition and obtained a monopoly in the kind of business mentioned and have enforced in an improper and unreasonable manner rules which may be reasonable on their face, all to plaintiffs' extensive loss. 'By devious, specious and unlawful methods' defendants have prevented their lot owners from dealing with plaintiffs. Defendants impose 'unreasonable, excessive and confiscatory costs, charges and fees' upon plaintiffs as a condition of their right to deal with lot owners, which is 'tantamount to a denial of the right.'

The activities of the defendants are charged to be Ultra vires, umreasonable, illegal and against public policy as a menace to free enterprise. It is asserted that plaintiffs will be caused 'extensive, substantial and irreparable loss' in their business, and they pray for an injunction against the enforcement of the rules and regulations, the engaging in Ultra vires activities, and the 'denying' or 'interfering' with the 'right of the plaintiffs' to erect and install memorials and monuments in the lands of the defendants.

By the liberal appraisal of the complaint required under our rules when there is an attack upon the sufficiency of a pleading, R.R. 4:8--6; Grobart v. Grobart, 5 N.J. 161, 167, 74 A.2d 294 (1950); Mianulli v. Gunagan, 32 N.J.Super. 212, 108 A.2d 200 (App.Div.1954); Puccio v. Cuthbertson, 21 N.J.Super. 544, 546, 91 A.2d 424 (App.Div.1952); Kurtz v. Oremland, 24 N.J.Super. 235, 93 A.2d 792 (Ch.Div.1952), we discern an attempt by the plaintiffs to bring their grievance within two theories: (a) the activities of defendants are Ultra vires and otherwise contrary to public policy, to plaintiffs' incidental commercial disadvantage; (b) wrongful interference by defendants with plaintiffs' business opportunities and prospective economic advantage.

There are intimations in the opinion of the trial court and in the argument of the respondent that the complaint is defective for failure of particulars of the wrongs asserted, and much could be said in support of the position that defendants are hardly apprised by the complaint as to precisely what they are charged with. See Untermann v. Untermann, 19 N.J. 507, 518, 117 A.2d 599 (1955); Brown v. Brown, 2 N.J. 252, 255, 66 A.2d 154 (1949); Grobart v. Society for Establishing Useful Manufactures, 2 N.J. 136, 150, 151, 152, 65 A.2d 833 (1949); 2 Moore's Federal Practice (2d ed. 1948), § 8.13, pp. 1649--1655. We have concluded, however, that it is fairly to be determined, upon the basis of what is expressed in the complaint and such reasonable intendment in support of the allegations set forth as must be made under the rule that 'all pleadings shall be so construed as to do substantial justice,' R.R. 4:8--6; Jersey City v. Hague, 18 N.J. 584, 602, 115 A.2d 8 (1955), that in a limited sense a claim upon which relief can be granted is stated in the complaint.

So far as the complaint is cast in the guise of an effort to enforce statutory or other limitations upon the exercise of the corporate powers of the defendants or to procure a judicial determination of the legality of or reasonableness of their rules and regulations, as such, we are in agreement with the decision of the trial court that plaintiffs have no standing to complain. Davisson v. Mt. Moriah Cemetery Ass'n, 87 Mont. 459, 288 P. 612, 81 A.L.R. 1419 (Sup.Ct.1930); Annotation 81 A.L.R. 1422; Tatman v. Rochester Lodge No. 47, I.O.O.F., 88 Ind.App. 507, 164 N.E. 718 (Ct.App.1929); but see Tonella v. Fishkill Rural Cemetery, 135 Misc. 81, 236 N.Y.S. 663 (Sup.Ct.1929), affirmed 229 App.Div. 732, 241 N.Y.S. 851 (App.Div.1930), affirmed 255 N.Y. 617, 175 N.E. 338 (Ct.App.1931); Anheuser v. West Lawn Cemetery Co., 230 Wis. 262, 282 N.W. 577 (Sup.Ct.1938). The majority view is that the reasonableness of a cemetery rule or regulation can be questioned only by one having an interest in a lot or in those buried therein. Boorstein, 'Rules and Regulations of Cemeteries,' 63 N.J.L.J. 305, 311 (1940). The plaintiffs cite the Tonella case, supra, as in their favor. It is not. There, true, the trial court sustained an action by a contractor engaged by a lot owner to build a mausoleum, who complained he could not fulfill his contract because of unreasonable and illegal administration of the defendant cemetery's regulations. But the Appellate Division of the New York Supreme Court stated the 'action was not properly brought' by the plaintiff and permitted it to stand only because the lot owner had joined in the relief sought and thus all necessary parties were before the court. We concur in the settled view that the reasonableness of cemetery regulations, as such, is a matter ordinarily between the lot owners and the organization, alone. The legality of such regulations and any contention that they are Ultra vires are, of course, properly for the attention of the Attorney General also. Cf. Atlas Fence Co. v. West Ridgelawn Cemetery, 110 N.J.Eq. 580, 596, 160 A. 688 (E. & A.1932). Mountainside v. Board of Equalization, 81 N.J.L. 583, 585, 80 A. 488 (E. & A.1911). Considering the affairs of the defendants in their status as charitable trusts, the rule is that enforcement of the trust is to be had by the Attorney General, by a trustee or by one having a special interest in its enforcement, but not by a stranger, Ibid.; First Camden Nat. Bank & Trust Co. v. Hiram Lodge No. 81, 134 N.J.Eq. 303, 35 A.2d 490 (Ch.1944), affirmed 135 N.J.Eq. 505, 39 A.2d 371 (E. & A.1944); 4 Scott on Trusts (2d ed. 1956), § 391, p. 2760.

Normally the regularity of the exercise of a corporate franchise will be inquired into only at the instance of the Attorney General. State v. Paterson & Hamburg Turnpike Co., 21 N.J.L. 9 (Sup.Ct.1847); State ex rel. Stevenson v. Godwinville & Paterson Macadamized Road Co., 7 N.J.L.J. 82 (Sup.Ct.1884); see Holloway v. Dickinson, 69 N.J.L. 72, 73, 54 A. 529 (Sup.Ct.1903). While courts of equity have in some cases restrained the gross abuse of corporate powers where special injury to complaining individuals was shown, 13 Am.Jur., Corporations, § 764, p. 792; City of Madison v. Madison Gas & Electric Co., 129 Wis. 249, 108 N.W. 65, 8 L.R.A.,N.S., 529 (Sup.Ct.1906); Hudson River Tel. Co. v. Watervliet Turnpike & Ry. Co., 135 N.Y. 393, 32 N.E. 148, 17 L.R.A. 674 (Ct.App.1892); Fulton Light, Heat & Power Co. v. Seneca River Power Co., 119 Misc. 729, 197 N.Y.S. 319 (Sup.Ct.1922), affirmed 206 App.Div. 731, 199 N.Y.S. 923 (App.Div.1923), it is generally considered that the mere fact of increased competition with one's business which results from the Ultra vires acts of a corporation will not afford status to challenge the exercise of such power. 7 Fletcher, Law of Private Corporations (rev.ed.1931), § 3451, p. 598; New Orleans, Mobile & Texas Railroad Co. v. Ellerman, 105 U.S. 166, 26 L.Ed. 1015 (1882); Toye Bros. Yellow Cab Co. v. Cooperation Cab Co., 199 La. 1063, 7 So.2d 353 (Sup.Ct.1942). Cf. New Jersey Bankers' Ass'n v. Van Riper, 1 N.J. 193, 62 A.2d 677 (1948); Newark Twentieth Century Taxicab Ass'n v. Lerner, 11 N.J.Super. 363, 78 A.2d 315 (Ch.Div.1951); Lipman v. Forman, 138 N.J.Eq. 556, 49 A.2d 236 (Ch.1946). A noteworthy case taking a different view on this point is People ex rel. J. H. Anderson Monument Co. v. Rosehill Cemetery Co., 3 Ill.2d 592, 122 N.E.2d 283, 285 (Sup.Ct.1954). It was there held, by a closely divided court, that a monument maker having his place of business across...