Lentini v. Town of Montclair
| Decision Date | 17 April 1939 |
| Docket Number | No. 28.,28. |
| Citation | 122 N.J.L. 355,5 A.2d 692 |
| Parties | LENTINI v. TOWN OF MONTCLAIR. |
| Court | New Jersey Supreme Court |
Appeal from Court of Common Pleas, Essex County.
Action by Mirabella Lentini against the Town of Montclair, a municipal corporation of the state of New Jersey, for injuries sustained when the plaintiff fell on the street. From a judgment dismissing the complaint for failure to state a cause of action, the plaintiff appeals.
Reversed.
Argued October term, 1938, before BROGAN, C. J., and BODINE and HEHER, JJ.
Samuel Rosenblatt, of Montclair, for appellant.
George S. Harris, of Montclair, for respondent.
Plaintiff appeals from a judgment of the Essex County Common Pleas Court dismissing her complaint on the ground that "it fails to show a cause of action in favor of the plaintiff against the defendant."
The complaint charges that the defendant municipality, having the duty to maintain the public highways in Montclair in good and safe condition, undertook to repair Woodlawn Avenue by "seal-coating" the surface of that highway. This operation consisted in treating the surface with oil and covering same with crushed stone and dust. The complaint further alleges that the oil was laid down on the road "in such a quantity and in such a manner" that the pavement became slippery, with the result that it became a place of danger and amounted to a common nuisance as far as the public was concerned. The plaintiff was seriously injured by falling thereon. The second count of the complaint is a virtual repetition of the first.
The court below held that the complaint did not state a cause of action and relied chiefly on the case of Lydecker v. Freeholders of Passaic County, 91 N.J.L. 622, 103 A. 251, L.R.A.1918D, 351, but we do not think that this case is controlling. There an excess amount of oil was spread on the roadway by a contractor. The municipality was not the active tort-feasor and the complaint charged a mere omission of duty, i. e., failure to warn the public, etc. Our view here is that the burden of the complaint before us charges affirmative negligence amounting to misfeasance. It is not an omission to perform a duty that is charged but rather active, affirmative wrongdoing. There is no right of action for injuries received by an individual because of a neglect to perform a duty, i. e., non-feasance. A municipality is not answerable for non-feasance on the part of its servants or agents unless such liability be...
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Chatman v. Hall
...418, 423-25, 26 A.2d 288 (E. & A.1942); Newman v. Ocean Township, 127 N.J.L. 287, 21 A.2d 841 (E. & A.1941); Lentini v. Montclair, 122 N.J.L. 355, 356, 5 A.2d 692 (Sup.Ct.1939); Fisher v. Nutley, 120 N.J.L. 290, 199 A. 40 (E. & A.1938); Florio, supra, 101 N.J.L. at 539, 129 A. In addition, ......
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...is the failure to perform a duty. Newman v. Ocean Township, 127 N.J.L. 287, 21 A.2d 841 (E. & A.1941); Lentini v. Town of Montclair, 122 N.J.L. 355, 5 A.2d 692 (Sup.Ct.1939). Misfeasance is the wrongful and injurious exercise of lawful authority, or the doing of a lawful act in an unlawful ......
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...The court refused to strike the complaint and held that the allegation amounted to a charge of active wrongdoing. Lentini v. Town of Montclair, 122 N.J. L. 355, 5 A.2d 692, involves a complaint wherein it was alleged that the defendant, a municipality, excessively oiled the surface of a pub......
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