Kurtz v. Oremland, C--2364

• Decision Date: 17 December 1952
• Docket Number: No. C--2364,C--2364
• Citation: 93 A.2d 792,24 N.J.Super. 235
• Parties: KURTZ et al. v. OREMLAND et al.
• Court: New Jersey Superior Court

Page 235

24 N.J.Super. 235

93 A.2d 792

KURTZ et al. v. OREMLAND et al.

No. C--2364.

Superior Court of New Jersey Chancery Division.

Dec. 17, 1952.

Bernard Hellring, Newark, for plaintiffs. (Greene & Hellring, Newark, attorneys).

Wm. Elmer Brown, Jr., Atlantic City, for defendants David Lewis and Pearl Oremland.

David M. Perskie, Atlantic City, for Dunn's English Leather Shop, Inc. (Perskie & Perskie, Atlantic City, attorneys).

Carl Kisselman Camden, for defendant Albert M. Greenfield & Co.

HANEMAN, J.S.C.

This is a motion made by defendants David Lewis and Pearl Oremland to dismiss plaintiffs' complaint as to them, for the reasons that: (1) it fails to state a claim upon which relief can be granted; (2) it fails to charge said defendants with the violation of any duty which they owed to plaintiffs; and (3) it fails to charge the defendants with the infringement of or interference with any of plaintiffs' legal rights.

The complaint, in brief, sets forth the following facts:

1. On June 28, 1950 the plaintiffs entered into a contract with Dunn's English Leather Shop, Inc., hereinafter referred to as Dunn's, for the purchase of all of the fixtures and good will of a retail leather business operated by the said Dunn's at 1535 Boardwalk, Atlantic City, New Jersey. The said agreement contained the following provision:

'7. The seller agrees to transfer and assign to the buyers the lease to the said premises and all rights therein, said lease being dated April 4, 1950, made by Stanley Company of America and Dunn's English Leather Shop, Inc., a corporation of New Jersey; said transfer to take place at the time of final settlement on July 17, 1950. The aforesaid lease of April 4, 1950 provides that any assignment of said lease shall require the written approval of the lessor, the Stanley Company of America, a Delaware Corporation. * * * If approval of lessor cannot be obtained, this agreement to be void and deposit refunded.'

2. The defendant Albert M. Greenfield & Co., hereinafter referred to as Greenfield, was both the agent of Dunn's in connection with the sale, and the agent of Stanley Company of America, hereinafter referred to as Stanley, as owner and lessor of premises at 1535 Boardwalk.

3. Subsequent to the date of the plaintiffs' agreement with the said Dunn's, defendants David Lewis and Pearl Oremland entered into a conspiracy to prevent the plaintiffs from obtaining the approval of the lessor, as required by the agreement, and to obtain such approval for said David Lewis and Pearl Oremland, to the detriment and damage of said plaintiffs. The said Greenfield, as a part of said alleged conspiracy, then obtained an agreement for the purchase by Lewis and Oremland from Dunn's of the identical personalty theretofore covered by the first above referred to agreement with plaintiffs. This agreement with Lewis and Oremland contained a provision similar to that quoted from plaintiffs' agreement providing for a transfer of Dunn's lease with the Stanley Company. For obtaining the Lewis and Oremland agreement Greenfield was to receive a larger commission from them, and the Dunn's were to be free from paying the entire brokerage commission.

4. The plaintiffs were advised to transfer their information concerning their qualifications as an assignee of said lease to Greenfield as agent for the Stanley Company, and they did so. In furtherance of said conspiracy between Greenfield and Lewis and Oremland, the former, having thus obtained information from plaintiffs, proceeded further by contacting the Philadelphia office of the Stanley Company and furnishing to it false and misleading information as to both the plaintiffs and the said Lewis and Oremland. This conduct on the part of the defendant Greenfield was requested, furthered and procured by the said Lewis and Oremland. With regard to the plaintiffs, the Greenfield defendant furnished the Stanley Company with information designed to deprecate and belittle the plaintiffs' financial standing, business experience, integrity, and the like, with the intent that the Stanley Company would disapprove an assignment to plaintiffs but would approve an assignment to said Lewis and Oremland. This conduct on the part of Greenfield and Lewis and Oremland was a malicious and wanton interference with the contract and the lawful business and occupation of the plaintiffs.

The above reference to the complaint is only a condensation of the factual allegations made by the plaintiffs. DP Plaintiffs seek a judgment declaring that the said Lewis and Oremland are constructive trustees for the benefit of plaintiffs and that they shall turn over and transfer to the plaintiffs all of the said business operated and purchased from Dunn's, and for an accounting of the conduct of the same, and compensatory and punitive damages from all of said defendants, including the said Lewis and Oremland above referred to.

The motion here made is pursuant to Rule 3:12--2, and for the purpose of consideration thereof all of the facts well pleaded must be taken as true. Evangelista v. Public Service...