Karpenski v. Inc. Borough of S. River

• Decision Date: 08 June 1912
• Citation: 83 N.J.L. 149,83 A. 639
• Parties: KARPENSKI v. INCORPORATED BOROUGH OF SOUTH RIVER.
• Court: New Jersey Supreme Court

83 A. 639

83 N.J.L. 149

KARPENSKI

v. INCORPORATED BOROUGH OF SOUTH RIVER.

Supreme Court of New Jersey.

June 8, 1912.

(Syllabus by the Court.)

Action by Alexander Karpenski, by Toseph Karpenski, his next friend, against the Incorporated Borough of South River. Heard on demurrer and motion to strike out declaration. Demurrer overruled, and judgment entered thereon for plaintiff.

Argued February term, 1912, before BERGEN, VOORHEES, and KALISCH, JJ.

George S. Silzer, of New Brunswick, and John A. Coan, of South Amboy, for demurrant.

J. A. Kiernan, of Elizabeth, for plaintiff.

VOORHEES, J. The plaintiff, an infant, was injured by coming in contact with a live wire maintained by the defendant in its electric lighting system used for public and private lighting, and brings this action to recover damages for the alleged negligence of the defendant.

The defendant has not only demurred to the declaration, but has moved to strike it out under the 110th section of the Practice Act (3 Comp. St. 1910, p. 4086), upon the ground that it alleges the next friend of the infant to be the plaintiff, and concludes to the damage of the next friend and not of the infant, and that it is redundant and prolix, setting up matters not a part of the plaintiff's cause of action. The declaration, in its commencement, contains the following language: "The defendant is summoned to answer unto Alexander Karpenski, by Joseph Karpenski, his next friend, in an action, etc., * * * and thereupon the said Alexander Karpenski, by Joseph Karpenski, his next friend, the plaintiff, by J. A. K., attorney of said plaintiff, complains, etc." It is not perceived that these sentences describe Joseph as the plaintiff. In the face of the specific associated statement that "the said Alexander, being an infant, * * * his father, Joseph, has been appointed to prosecute, etc.," no confusion can arise, in the proper construction of the phrases complained of. Nor is the conclusion defective. It is thus framed: "Wherefore the said Alexander, by Joseph, his next friend, the plaintiff herein, through their attorney of record, say that the said Alexander has been injured * * * and that an action hath accrued to said Alexander, etc." By a fair construction, "Alexander" and "the plaintiff" are in apposition. On this point Blowski v. American Enameled Brick & Tile Co., 72 N. J. Law, 409, 60 Atl. 1101, is not parallel, where the conclusion was "to the damage of the said plaintiff as guardian and next friend, etc." In these particulars the declaration is not irregular and defective, and so framed that it will embarrass the defendant upon the trial of the action.

The remaining ground of this motion proceeds upon the theory that the declaration is redundant and prolix. It may be admitted that it might be compressed into smaller compass, but the authority to strike out is based upon irregularity or...