French v. Armstrong
| Decision Date | 13 June 1910 |
| Parties | FRENCH et al. v. ARMSTRONG. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Action by Thomas E. French and others, Receivers of the State Mutual Building and Loan Association against Edwards Ambler Armstrong. On motion to strike out causes of demurrer and on demurrer after determination of such motion. Motion to strike out causes of demurrer denied and judgment for plaintiffs on the demurrer.
Argued February term, 1910, before GARRISON, SWAYZE, and PARKER, JJ.
The Receivers, in pro. per.
McCarter & English, for defendant.
PARKER, J. Defendant demurred to the declaration, and assigned various grounds of demurrer as required by our present practice act. P. L. 1903, p. 537, § 131. The plaintiff moves to strike out four of these grounds of demurrer as general, and not specifying any particular grounds of demurrer.
No such course is known to our practice. The questions to be decided on the argument of the demurrer are whether any of the grounds, and if so, which of them, point out any defect or defects in the declaration, and if so whether those defects are sufficient to vitiate it in point of substance. To permit a motion of the kind now made is to sanction what is in effect a demurrer to a demurrer. The recent decision of the Court of Errors and Appeals in Board of Railroad Commissioners v. United N. J. R. R. & Canal Co., 74 Atl. 915, upon a similar question in the Court of Chancery, is quite applicable here. The motion to strike out causes of demurrer will be denied.
By arrangement with counsel the demurrer itself has also been argued and will now be disposed of. The declaration contains two counts. The first alleges that on May 3, 1902, the building and loan association, of which plaintiffs are receivers, retained defendant "for fees and reward to be thereafter paid to said defendant" to collect the money due on a certain mortgage, describing it, and to foreclose it, "and to prosecute and conduct such actions at law or in equity, and to do all other matters and things that were necessary and advisable for said purpose, including the redemption of said premises if necessary from all prior liens"; that defendant accepted the retainer, and entered on the employment; that afterwards, on July 22, 1902, the mortgaged premises were sold by the local collector for taxes, and notice to redeem within one year from the sale, and within six months from the notice "in accordance with the statute in such case made and provided, was served on April 18, 1903, by the purchaser thereof, upon the defendant for said association." and that it became the duty of defendant within a reasonable time thereafter to collect and foreclose the mortgage and notify the board of directors of the association of the notice, and advise them that the property would be lost by delivery of deed to the tax purchaser unless redeemed in time, etc., but that defendant neither collected the money nor foreclosed the mortgage nor called the notice to the attention of the directors, nor advised them as to the liability of loss, nor otherwise acted with due diligence, insomuch that by reason, etc., a deed absolute as against the association and the plaintiffs was delivered to the purchaser, and the lien of the mortgage was lost, and said association and plaintiffs deprived of the means. of recovering the mortgage loan, to their damage, etc.
The second count sets up the same facts as to retainer, mortgage, tax lien, and loss...
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O'regan v. Schermerhorn
...99 A. 203. And it has been held that a motion to strike out the causes of demurrer is not recognized in our practice. French v. Armstrong, 80 N.J.L. 152, 76 A. 336. The proper practice, with respect to such a reservation, as indicated by Rule 40, is to move the court to ‘determine the quest......
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Hoppe v. Ranzini
...v. Peterson, 91 N.J.L. 404, 103 A. 983 (S.Ct.1918), aff'd 92 N.J.L. 631, 105 A. 894 (E. & A.1918). See also French v. Armstrong, 80 N.J.L. 152, 76 A. 336 (S.Ct.1910). If the attorney is retained to give legal advice, is negligent in that respect and the client pays money to others as a resu......
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RePass v. Vreeland
...N.J.L. 617, 141 A. 780 (N.J. Ct. of Errors & Appeals, 1928); Jacobsen v. Peterson, 91 N.J.L. 404, 103 A. 983 (1918); French v. Armstrong, 80 N.J.L. 152, 76 A. 336 (1910). "The ordinary rule that negligence is actionable only where it is the proximate cause of the damages complained of has f......
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Sadej v. Arturi
...but argued "exactly the opposite" during the malpractice action. In support of that argument, plaintiff cites to French v. Armstrong, 80 N.J.L. 152, 155 (Sup. Ct. 1910). However that case did not hold that a plaintiff is entitled to attorney's fees for the pursuit of "worthless claims." Fur......