McQuillan v. Clark Thread Co.

• Decision Date: 13 February 1934
• Citation: 172 A. 370
• Parties: McQUILLAN et al. v. CLARK THREAD Co.
• Court: New Jersey Supreme Court

172 A. 370

McQUILLAN et al.

v. CLARK THREAD Co.

Supreme Court of New Jersey.

Feb. 13, 1934.

Action by Elsie McQuillan and Charles McQuillan against the Clark Thread Company. On defendant's motion to strike out the complaint on the ground that the allegations are sham and that they do not state a cause of action and on plaintiffs' motion to amend the complaint.

Motion to strike out the complaint granted, and motion to amend the complaint denied.

Lindabury, DePue & Faulks, of Newark (Walter F. Waldau, of Newark, of counsel), for the motion.

Jack Feinberg, opposed.

OLIPHANT, Commissioner.

This matter is before me sitting as a Supreme Court commissioner on a motion to strike the complaint upon the ground (hat the allegations thereof are sham and upon the further ground that they do not state a good, legal, and sufficient cause of action.

The complaint alleges that on October 19, 1933, and for a long time prior thereto, the defendant was and still is the owner of premises situated on Danforth avenue, in the city of Jersey City, and further alleges that on or about said date, and for a long time prior thereto the sidewalks were permitted and allowed to be used while they were in a defective and dangerous condition, and that this condition was caused through the carelessness and negligence of the defendant. The complaint further avers that the plaintiff Elsie McQuillan, while using the sidewalk, fell and received injuries.

Attached to the notice of motion to strike was the affidavit of William H. Loftus, vice president of the defendant, Clark Thread Company. That affidavit states that the Clark Thread Company on October 14, 1933, sold and conveyed the premises mentioned in the complaint; the deed being executed and delivered, and possession of the premises delivered on said day. The affidavit further states that the Clark Thread Company has not been in possession or control of the premises since the 14th day of October, 1933.

The facts as stated in the affidavit were admitted by plaintiffs' attorney in the oral argument before me.

At the time the motion to strike the complaint was argued, the plaintiffs asked leave to file an amended complaint in which the present owner and occupier of the premises were joined as defendant and which repeated the count of negligence against the Clark Thread Company, and added a second count sounding in nuisance.

It can be seen that this action is brought against the defendant, who had by warranty deed without reservations conveyed the property five days before the alleged happening of the accident to the plaintiff.

There appears to be no case precisely in point on this question in this state. The leading case in the country, however, appears to be that of Palmore v. Morris, (1897) 182 Pa. 82, 37 A. 995, 998, 61 Am. St Rep. 693. In that case an action was instituted against the defendant for injuries sustained by a minor which injuries were the result of the defendant's negligence in maintaining a dangerous and badly secured gate on a building adjoining a public sidewalk. The evidence showed that the gate was out of repair and that there was negligence on the part of the one whose duty it was to repair it. The plaintiff was injured while standing on the pavement and looking through this gate into the premises. The day previous to the accident, the defendant had conveyed the property by deed. The lower court submitted the case to the jury, and a verdict was rendered for the plaintiff. On appeal this judgment was reversed. Mr. Justice Dean, writing the opinion for the court, said in part:

"But this is not a letting of the land by a landlord to a tenant; it is an absolute sale, whereby the owner devests himself of title, and all right to possession, or of re-entry for...