Tansey v. Belleville Relief Ass'n

• Decision Date: 17 May 1926
• Docket Number: No. 77.,77.
• Citation: 133 A. 423
• Parties: TANSEY v. BELLEVILLE RELIEF ASS'N.
• Court: New Jersey Supreme Court

133 A. 423

TANSEY

v. BELLEVILLE RELIEF ASS'N.

No. 77.

Court of Errors and Appeals of New Jersey.

May 17, 1926.

Appeal from Court of Chancery.

Bill of Michael J. Tansey against the Belleville Relief Association. From a decree striking out the bill of complaint, complainant appeals. Affirmed.

On appeal from a decree of the Court of Chancery advised by Vice Chancellor Bentley, who delivered the following opinion:

"This is a motion to strike a bill of complaint, upon the ground that the bill and sworn testimony of the complainant conclusively show that the pleading will not lie.

"The pertinent allegations of the bill are: That the defendant adopted a resolution authorizing the sale of the land in question, and passed a second resolution authorizing an agent to negotiate the sale thereof; that the agent entered into an agreement to convey the land to the complainant for such a sum of money as would liquidate the defendant's debts, to be, however, not less than $25,000. It is then said that the complainant undertook the usual and necessary steps to prepare for taking title, but that the defendant entered into an agreement with some other person to convey the property. The prayer is for specific performance of the complainant's contract with the agent of the defendant.

"Pursuant to an order, the complainant presented himself, and was cross-examined by the defendant, from which it appears that the contract which he seeks to have enforced was not in writing, and that there was no memorandum thereof in writing signed by the defendant, or 'some other person thereunto by him or her lawfully authorized,' as required by the fifth subdivision of section 5 of 'An act for the prevention of frauds and perjuries.' 2 C. S. p. 2612. There was no memorandum, letter, note, or other documentary evidence of the alleged contract produced or proved, and, therefore, it is clear, of course, that none exists or can be proved upon a final hearing, if the cause were permitted to proceed thereto. This brings the motion within the authority of Strauss v. Rabe (N. J. Ch.) 127 A. 188, affirmed (N. J. Err. & App.) 130 A. 920, not yet officially reported. In that case it was said:

"'From these cases it is argued, and I think with soundness, that, where a bill upon its face appears to set forth a valid cause of action, but it is otherwise made to appear by the complainant's own proofs, such as the verifying affidavits or schedules annexed to his bill or otherwise, that in all...