Friedberg v. Siracusa Co.

• Decision Date: 24 July 1946
• Citation: 48 A.2d 306
• Parties: FRIEDBERG v. SIRACUSA CO.
• Court: New Jersey Circuit Court

48 A.2d 306

FRIEDBERG

v.SIRACUSA CO.

Circuit Court of New Jersey, Atlantic County.

July 24, 1946.

Action by Benjamin Friedberg against Siracusa Company to recover brokerage commissions in accordance with a contract. On defendant's motion to strike the complaint.

Order in accordance with opinion.

See also 46 A.2d 54, 24 N.J.Misc. 45.

Lloyd, Horn & Perskie, by Herbert Horn, all of Atlantic City, for plaintiff.

W. Elmer Brown, Jr., of Atlantic City, for defendant.

BURLING, Judge.

Plaintiff alleged in paragraph 4 as amended, in his complaint:

‘That the defendant entered into a contract made for the benefit of the plaintiff with the D & F Corporation by the terms of which said D & F Corporation agreed to permit the defendant to write or place all of the insurance including fire insurance, as well as other types of insurance, to cover said D & F Corporation and/or Hotel Knickerbocker Operating Company on Knickerbocker Hotel and garage in the City of Atlantic City, and said D & F Corporation agreed that it would not cancel or cause to be cancelled any insurance previously written covering said D & F Corporation and Hotel Knickerbrocker Operating Company, providing, and as a consideration therefor, said defendant would agree to pay to plaintiff one half of the commission so written or placed and on any future business so written or placed covering said hotel or the owner or operator thereof.'

Defendant demands brokerage commissions in accordance with the contract.

Motion has been made by the defendant to strike the complaint upon the following grounds:

‘1. The first count of said complaint is fictitious in that it fails to set forth a good and legal cause of action.

‘2. The first count of said complaint is founded upon an illegal contract and the said contract is therefore unenforceable.

‘3. The contract as set forth in the first count of said complaint, as amended, is illegal and unenforceable for the reason that it violates the provisions of R.S. 17:36-3; R.S. 17:36-5.2 and 5.7; R.S. 17:22-1 and 5; R.S. 17:22-6.2 and 6.18; R.S. 17:29-1 and 2; and R.S. 17:29A-15 [N.J.S.A.].

‘4. The second count of said complaint, as amended, is sham and untrue in fact.

‘5. The second count of said complaint, as amended, is obscure and uncertain and fails to sufficiently and properly apprize the defendant of the facts on which plaintiff's claim is based and, therefore, defendant is unable to make proper and intelligent answer thereto.

‘6. The third count of said complaint, as amended is sham and untrue in fact.

‘7. The third count of said complaint, as amended, is obscure and uncertain and fails to sufficiently and properly apprize the defendants of the facts on which plaintiff's claim is based and, therefore, defendant is unable to make proper and intelligent answer thereto.'

Count One.

The objection of the defendant that the plaintiff does not seek to recover for services rendered as a broker in the present form of the complaint is well grounded. To support the complaint the plaintiff must have a right to recover merely because he was a licensed broker without the rendition of service; that any third party insured may contract with the insurance company agent to inject and cause to be paid by the insurance company or its agent to such a licensed broker a percentage of the commission as an inducement and condition of the principal contract. This is an illegal act and invalidates the contract. R.S. 17:22-6.18, N.J.S.A.

The legislature has declared the public policy in order to avoid the opportunity for rebates and discrimination. R.S. 17-29-1 and 2, N.J.S.A. Such a contract is unenforceable. Gionti v. Crown Motor Freight Co., 1942, 128 N.J.L. 407, 26 A.2d 282.

In such a case where the facts are exposed by the complaint, the objection to the prosecution of the action may be properly taken by demurrer. Auditorium Kennel Club v. Atlantic City, 1938, 199 A. 908, 16 N.J.Misc. 354 at page 362.

The motion to strike count one as failing to establish a legal cause of action and because it is founded upon an illegal contract and is unenforceable is granted.

The ultimate object of pleading is not to defeat, but to advance the ends of justice; not to destroy, but to protect the substantial rights of parties. Hale v. Lawrence, 1849, 22 N.J.Law 72, at page 74; Lully v. National Surety Co., 1929, 106 N.J.Law 81, at page 83, 148 A. 762. Should the plaintiff desire, leave is granted to file an amended complaint...