Sunshine Park Inc. v. Gulvin.
| Decision Date | 02 July 1943 |
| Citation | 33 A.2d 704 |
| Parties | SUNSHINE PARK, Inc., v. GULVIN. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Action at law in ejectment by Sunshine Park, Inc., a corporation of the State of New Jersey, against Ward T. Gulvin. On plaintiff's motion for an order to strike defendant's answer.
Motion denied.
Leon Leonard, of Atlantic City, for plaintiff.
Elwood C. Weeks, of Atlantic City, for defendant.
BURLING, Circuit Judge and Supreme Court Commissioner.
Motion has been made before me as a Supreme Court Commissioner for an order to strike the answer of the defendant in this cause of action. The following reasons are assigned: (a) The answer is sham; (b) untrue in fact; (c) frivolous; (d) insufficient in law; (e) interposed for the purpose of delay.
In support of the motion, affidavit of the assistant secretary of the plaintiff has been presented, and answering affidavits of Wallace C. Roth, and of the defendant Ward T. Gulvin have been presented on behalf of the defendant.
The plaintiff in the cause of action demands possession of that certain premises known, designated and described as Lot Numbered one (1) in Block Numbered six (6) on a certain map entitled ‘Plan of Sunshine Park’ made by J. M. Adams, Civil Engineer and Land Surveyor and filed July 9, 1936, as map of River View Park, being map No. 1000 in the office of the Clerk of Atlantic County, at Mays Landing, N. J.,' and located in Sunshine Park, Hamilton Township, Atlantic County, New Jersey, and all that certain premises known, designated and described as Lots numbered one (1), two (2) and three (3) in Block numbered eleven (11) as shown on the map of Sunshine Park, Inc., Hamilton Township, Atlantic County, New Jersey, and filed in the office of the County Clerk at Mays Landing and located in Sunshine Park, Hamilton Township, Atlantic County, New Jersey.
By stipulation of counsel, this motion is limited to the portion of the tract of land as above described being lot numbered One (1) in Block numbered six (6) on said plan, by virtue of the pendency of a cause of action in the Court of Chancery, with ad interim restraint relating to the remaining tracts of lands described in said complaint.
The summons appears to have been drafted in accordance with the provisions of Rule 183 of the Supreme Court, N.J.S.A. Tit. 2, and form 2a of the schedule annexed thereto.
The complaint appears to have been drafted in accordance with rule 184 of the Supreme Court Rules, and with form 13a annexed to said rules.
The answer raises the general issue and is in form suggested by form No. 22a referred to in Rule 185 of the Supreme Court rules.
Apparently neither party has demanded in writing of the other, a Bill of Particulars, after issue has thus been joined, pursuant to the opportunity provided by R.S.2:51-25, N.J.S.A.
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 action in 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, Court of Errors and Appeals, 1927, 103 N.J.L. 617 at page 619, 137 A. 543.
The answer was good upon its face, but the plaintiff contended false in fact, and as heretofore stated, added this as an additional ground to strike the answer, thereupon assuming the burden fo conclusively proving it to be so by proof. The Scottish Rite Co. v. Salkowitz, Court of Errors and Appeals, 1937, 119 N.J.L. 558 at page 559, 197 A. 43.
The defendant pleads the general issue, thus admitting possession by him. Quinlan v. Fair Haven, Court of Errors and Appeals, 1925, 102 N.J.L. 443, at page 444, 131 A. 870, citing Jacobson v. Hayday, Court of Errors and Appeals, 1912, 83 N.J.L. 537 at page 538, 83 A. 902.
The issues raised by both the plaintiff and the defendant in this motion revolve about the effect of two certain deeds:
1-Sunshine Park, Inc. (the plaintiff), to J. Alex Rubin Clark, dated June 22, 1938, affecting premises in question which contains the following conditions: ‘Provided, however and this conveyance is made upon the following expressed conditions and covenants, all of which are hereby declared to run with the land hereby conveyed and to each and every of which the said party of the second part for himself, his heirs and assigns, hereby consents and covenants to observe and keep, that is to say that if the said party of the second part his heirs or assigns shall...
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Hagaman v. Board of Ed. of Woodbridge Tp.
...at 359, 86 A.2d 16; Board of Education, West Paterson v. Brophy, Supra, 90 N.J.Eq. at 62, 106 A. 32; Sunshine Park, Inc. v. Gulvin, 21 N.J.Misc. 282, 286, 33 A.2d 704, 706 (Sup.Ct.1943). In the present case there are no words indicating an intent to create a fee simple determinable or a fee......
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Gulvin v. Sunshine Park Inc. .
...a decree for complainant and from an order denying defendant's application for rehearing, defendant appeals. Affirmed. See also 33 A.2d 704, 21 N.J.Misc. 282. Leon Leonard, of Atlantic City (Hervey S. Moore, of Trenton, and John A. Hartpence, of Jersey City, of counsel), for appellant. Elwo......
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...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 t......