Stefano v. D'allesandro.

Decision Date31 March 1948
Citation58 A.2d 548
PartiesDE STEFANO v. D'ALLESANDRO.
CourtNew Jersey Circuit Court

OPINION TEXT STARTS HERE

Ejectment by Serafina De Stefano against Victor D'Allesandro. On defendant's motion to strike the complaint.

Motion denied.

Carl Abruzzese, William Abruzzese, and Ralph G. Mesce, all of Newark, for plaintiff.

Levy, Fenster & McCloskey, of Newark, for defendant.

JOSEPH L. SMITH, Judge.

This is a motion to strike the complaint on the ground that it is sham. The suit is an action in ejectment. The plaintiff alleges that her right to possession of the premises in question accrued on the seventh day of February 1933. The complaint is in the statutory form.

The affidavit of the plaintiff sets forth that she is the mortgagee in a purchase money mortgage made by the defendant and that the said mortgage contained a covenant whereby the plaintiff may enter and take possession of the premises upon default in the performance in the conditions contained therein.

The plaintiff alleges a breach in that the purchase money mortgage has not been paid. The defendant, by affidavit, alleges that in August 1926 the plaintiff conveyed the premises to the defendant and the defendant executed a purchase money mortgage, which said mortgage was a second mortgage, subject to a first mortgage held by the Howard, Savings Institution.

In 1933 the Howard Savings Institution foreclosed its first mortgage and made the present plaintiff and defendant parties thereto. A final decree in the foreclosure proceeding was filed on April 3, 1933, and a sale of the property was held. The Howard Savings Institution purchased the property at the foreclosure sale. Subsequently, the property was conveyed to Antoinette D'Allesandro and she conveyed said property to the defendant.

The plaintiff resists the motion to strike the complaint on the ground that an action in ejectment is a statutory proceeding and that the defendant is limited to a plea of not guilty and to a plea to the jurisdiction by leave of the court. Ahlemeyer v. Miller, 103 N.J.L. 617, 137 A. 543.

The defendant asserts that the power of the Court in all suits to strike a pleading as sham is contained in R.S.2:27-124, N.J.S.A.

The defendant also relies on the case of Guardian Life Insurance Co. of America v. Rita Realty Company, 5 A.2d 45, 17 N.J.Misc. 87, wherein the answer in ejectment was stricken.

In Sunshine Park, Inc. v. Gulvin, 33 A.2d 704, on page 705, 21 N.J.Misc. 282, on page 284, Justice Burling (then a Circuit Court Judge and Supreme Court Commissioner) said:

‘In the first instance, as a matter of practice, there seems to be a doubt as to the authority for a motion to strike out a pleading in the nature of a demurrer at common law in an ejectment, and since there is no statute which provides for the striking out of a pleading in an action in ejectment, a notice for that purpose cannot be treated as a demurrer.’ Ahlemeyer v. Miller, 103 N.J.L. 617, 137 A. 543.

The power to strike out a pleading must be exercised with the greatest care and where falsity is alleged it must appear clearly and palpably so. Cross v. Margolis, 136 N.J.L. 453, 56 A.2d 759.

On the affidavits presented in the instant case, while the affidavit of the plaintiff does not controvert the facts set forth in the defendant's affidavit, yet there is nothing sham in the plaintiff's...

To continue reading

Request your trial
2 cases
  • Glasser v. Feller.
    • United States
    • New Jersey Court of Chancery
    • April 20, 1948
  • Baum v. Tazwell
    • United States
    • New Jersey Circuit Court
    • August 12, 1948
    ...This Court recently had occasion to rule on a motion to strike the complaint in an ejectment action in DeStefano v. D'Allesandro, Cir.Ct., March 31, 1948, 58 A.2d 548, 26 N.J.Misc. 176 (not reported in State Reports), wherein this Court refused to grant the motion because of the legal dispu......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT