N. Bergen Tp. v. Clinton Asphalt Co.

• Decision Date: 15 December 1933
• Docket Number: Nos. 23-25.,s. 23-25.
• Citation: 169 A. 818
• Parties: NORTH BERGEN TP. v. CLINTON ASPHALT CO. (three cases).
• Court: New Jersey Supreme Court

169 A. 818

NORTH BERGEN TP.

v. CLINTON ASPHALT CO. (three cases).

Nos. 23-25.

Supreme Court of New Jersey.

Dec. 15, 1933.

Appeal from Court of Common Pleas, Hudson County.

Actions by the Township of North Bergen in the County of Hudson, a municipal corporation, against the Clinton Asphalt Company, a New Jersey corporation. From judgments striking out complaints and ordering judgments for defendant, plaintiff appeals.

Reversed.

Argued May term, 1933, before BROGAN, C. J., and TRENCHARD and HEHER, JJ.

Nicholas S. Schloeder, of Union City, for appellant.

Burke, Sheridan & Hourigan, of Union City (John Milton, of Jersey City, of counsel), for respondent

PER CURIAM.

These are appeals from judgments entered in the Hudson county court of common pleas in three cases referred to as Central Outlet Sewer, Northern Outlet Sewer, and John street, upon rules made by that court, striking out the complaints and ordering judgments for the defendants.

The questions involved are common to all three cases and are argued together, and will be so dealt with here, as they were below, with particular reference to the Central Outlet Sewer case.

The cases, as we see them, all seek to recover losses alleged to have been sustained by the township of North Bergen as the result of alleged fraudulent and ultra vires contracts entered into between the defendant, Clinton Asphalt Company, and the former governing body in behalf of the plaintiff, township of North Bergen.

The defendant's answer consists principally of a denial of the allegations of the complaint, an allegation that the payments were made to the defendant by plaintiff's former governing body upon engineer's certificates, and, in addition, sets forth an objection in point of law to each of the several counts of the complaint, together with a general objection to the entire complaint, and further stated that the defendant would object that the complaint disclosed no cause of action, and reserved the right to move to strike out the complaint at or before the time of the trial on the ground that it does not set forth any cause of action against the defendant.

No motion was made by the defendant prior to filing the answer. The reply was filed and the case was noticed for trial.

Then the notice of motion was given to strike out the complaint and for summary judgment in favor of the defendant, on the ground that the complaint did not state a cause of action, and was sham and frivolous, and annexed to the motion papers was an affidavit of the president of the defendant company to disprove the various allegations of the complaint. The motion came on to be heard and the common pleas judge directed that the complaint be stricken out upon the ground that the complaint failed to disclose a cause of action, and ordered judgment for the defendant which was entered, and from which the plaintiff appeals.

The plaintiff first contends that the court erroneously struck out the complaint since the order was made upon a motion by the defendant addressed to the complaint under rule 30 of the Supreme Court after the defendant had filed an answer to the complaint.

There seems to be merit in that contention.

The motion addressed to the complaint seems to have been made pursuant to rule 30 of the Supreme Court as is particularly indicated by the filing of an affidavit by the defendant to disprove various allegations of the complaint. Such a motion addressed to the complaint, after answer filed, comes too late, even though there was reserved the right to make such motion. Apfelbaum v. Perce, 126 A. 738, 2 N. J. Misc. 1150, 1152; Klughaupt v. Acquackanonk Water Co., 126 A. 739, 2 N. J. Misc. 1188; Great American Indemnity Co. v. Gronowicz, 142 A. 897, 6 N. J. Misc. 821.

But the defendant maintains that the court below had power to strike the complaint and enter judgment under rule 40 of the Supreme Court on the ground that it disclosed no cause of action.

Assuming for present purposes that this power existed in the circumstances of the present case, the question remains, was it properly exercised in view of the allegations of the complaint, and, hence, we proceed to examine the contention of the...