Falcone v. Middlesex County Medical Soc.

CourtNew Jersey Superior Court – Appellate Division
Citation210 A.2d 78,87 N.J.Super. 486
Docket NumberNo. A--837,A--837
PartiesItalo J. FALCONE, Plaintiff-Appellant, v. MIDDLESEX COUNTY MEDICAL SOCIETY, an unincorporated association, et al., Defendants-Respondents.
Decision Date06 May 1965

Edward G. D'Alessandro, Newark, for appellant (Friedman & D'Alessandro, Newark, attorneys).

John E. Toolan, Perth Amboy, for respondent Middlesex County Medical Society (Toolan, Haney & Romond, Perth Amboy, attorneys).

Before Judges CONFORD, KILKENNY and LEWIS.

The opinion of the court was delivered by

KILKENNY, J.A.D.

The Superior Court, Law Division, granted summary judgment, on motion of defendant medical society, dismissing so much of count one and count two of the complaint as sought damages to and including July 21, 1960. Summary judgment for the dismissal of count three was denied. Count four of the complaint applies only to defendant hospitals, not defendant medical society, and was not involved in the motion for summary judgment.

Plaintiff appealed, by leave of the court, from the partial dismissal of the first two counts as aforesaid, and defendant medical society was permitted to cross-appeal from the denial of dismissal of the third count. The cross-appeal was withdrawn at oral argument. It is, therefore, dismissed without further comment. We consider only the propriety of the partial dismissal of the first two counts of the complaint.

The judgment is affirmed essentially for the reasons expressed by Judge Molineux in his opinion, 82 N.J.Super. 133, 196 A.2d 808 (Law Div.1964), as supplemented herein.

Licensed in 1950 to practice medicine and surgery in New Jersey, plaintiff applied in 1953 to be admitted as a member of defendant medical society, was admitted thereafter as an 'associate' member, and continued as such until November 29, 1956, when he applied for 'active' membership and was declared ineligible for membership because he had been 'licensed to practice as a Doctor of Osteopathy and not as a Doctor of Medicine.'

A complaint in a proceeding in lieu of prerogative writs was filed by plaintiff in the Law Division on September 22, 1958 against defendant medical society alone, and plaintiff alleged therein, Inter alia, that as a consequence of defendant's conduct in not admitting him to active membership there 'has been an impairment of the plaintiff's right to earn a livelihood and to obtain the economic advantages to which he was justly entitled.' Plaintiff prayed for judgment:

'First: Directing the defendant to admit the plaintiff as an active member of the defendant.

Second: To adjudicate the plaintiff's rights with respect to the grievances alleged in this complaint.

Third: For such other judgment as may be just and legal.'

The pretrial order also asserted that, by reason of the action of defendant society, plaintiff had been precluded from practicing his profession or having his patients admitted in two of the hospitals in the county, and he sought 'the aid of the court, because the action of the defendant seriously curtails his ability to practice medicine to the best advantages.' However, under the subdivision wherein plaintiff is required to specify all claims as to damages, the recital in the pretrial order stated simply: 'Not applicable.' The only issue specified was: 'Whether this association can be compelled to admit this plaintiff as one of its members?'

The case was tried before the late Judge Vogel. Plaintiff offered no proof as to damages as such, evidently being content to press only his claim for membership in defendant medical society. However, Judge Vogel, in upholding plaintiff's right to be admitted to full membership, noted in his opinion, 62 N.J.Super. 184, 200, 162 A.2d 324, 332 (Law Div.1960), that plaintiff had 'suffered substantial injury by virtue of his exclusion from the defendant society.' Despite this, plaintiff made no motion to amend the pleadings or pretrial order to assert specifically a claim for damages. Judge Vogel's judgment, directing defendant society to admit the plaintiff to full membership, was entered on July 21, 1960.

The judgment was affirmed by the Supreme Court on May 8, 1961. 34 N.J. 582, 170 A.2d 791, 89 A.L.R.2d 952. In September 1961, plaintiff was admitted to membership in defendant society.

The present suit was filed on February 7, 1962 and, as noted above, is in four counts, in each of which plaintiff seeks compensatory and punitive damages. Counts one and two, with which we are solely concerned, cover the period between November 29, 1956, when plaintiff was declared ineligible for active membership in defendant society, and September 1961 when, pursuant to the Supreme Court decision, plaintiff was reinstated as a member of defendant's society. Count one charges the society with wrongfully excluding plaintiff from membership during that period. Count two charges the society and defendant hospitals with conspiracy to effect that result and to cause plaintiff's removal from the staffs of defendant hospitals. Though counts one and two embrace the period from November 29, 1956 to September 1961, the summary judgment under review bars plaintiff's right to seek damages only to July 21, 1960, when Judge Vogel's judgment was entered. So far as we know, there was no stay of this judgment.

In his original suit, in the nature of Mandamus, to compel defendant society to admit him to membership, plaintiff asserted that his exclusion from membership was wrongful and constituted a serious impairment of his right to earn a livelihood and to obtain the economic advantages to which he was justly entitled. He could have pressed a claim for damages therein, in addition to the specific relief sought. There was but a single...

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8 cases
  • DiTrolio v. Antiles
    • United States
    • New Jersey Superior Court – Appellate Division
    • 27 Septiembre 1994
    ...(1977); Leisure Technology v. Klingbeil, 137 N.J.Super. 353, 357, 349 A.2d 96 (App.Div.1975); Falcone v. Middlesex County Medical Society, 87 N.J.Super. 486, 491, 210 A.2d 78 (App.Div.1965), aff'd in part, rev'd in part, 47 N.J. 92, 219 A.2d 505 In 1989 our Supreme Court extended the entire......
  • Reardon v. Allen, s. L--25628--62
    • United States
    • Superior Court of New Jersey
    • 2 Julio 1965
    ...one action.' Applestein v. United Board & Carton Corp., 35 N.J. 343, 356, 173 A.2d 225, 231 (1961); Falcone v. Middlesex County Medical Society, 87 N.J.Super. 486, 210 A.2d 78 (App.Div.1965); and see Kelleher v. Lozzi, 7 N.J. 17, 180 A.2d 196 (1951), holding that Kelleher was estopped from ......
  • Bennun v. BOARD OF GOVERNORS OF RUTGERS, ETC.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 21 Mayo 1976
    ...single controversy doctrine. Falcone v. Middlesex Co. Med. Soc., 82 N.J.Super. 133, 196 A.2d 808 (Law Div.1964), affirmed 87 N.J.Super. 486, 210 A.2d 78 (App.Div.1965), modified 47 N.J. 92, 219 A.2d 505 (1966). The same reasoning compels the conclusion that the present actions, had they bee......
  • Humble Oil & Refining Co. v. Church
    • United States
    • New Jersey Superior Court – Appellate Division
    • 30 Abril 1968
    ...and the Plaintiff herein may not now seek to do what it could have done in the prior suit. Falcone v. Middlesex County Medical Society, 87 N.J.Super. 486, 490, 491, 210 A.2d 78 (App.Div.1965).' We find neither reason valid and Defense of the Keiffer action was furnished Humble and its drive......
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