Taub v. Taub
| Decision Date | 11 October 1950 |
| Docket Number | No. A--274,A--274 |
| Citation | 75 A.2d 822,9 N.J.Super. 219 |
| Parties | TAUB v. TAUB et al. |
| Court | New Jersey Superior Court — Appellate Division |
Meyer Pesin, Jersey City, argued the cause for the appellants (Hiram Elfenbein, Jersey City, attorney).
Morris M. Ravin, Newark, argued the cause for the respondent.
Before Judges JACOBS, BIGELOW and JAYNE.
The opinion of the court was delivered
The facts presented to the Chancery Division on the motion for summary judgment are fully set forth in the opinion filed by Judge Haneman and need not be restated here; we agree with his conclusions that they established a trust in plaintiff's favor and entitled him to the relief awarded by the judgment. Eagles Building & Loan Association v. Fiducia, 135 N.J.Eq. 7, 37 A.2d 116 (Ch.1944) affirmed 136 N.J.Eq. 117, 40 A.2d 627 (E. & A.1945); Liberty Title & Trust Co. v. Plews, 6 N.J.Super. 196, 212, 70 A.2d 784 (App.Div.1950) certif. granted 4 N.J. 459, 73 A.2d 213 (1950). Our only concern is whether there is any merit to the appellant's contention that the cause should not have been determined on summary application but should have awaited trial.
After the complaint and answer were filed the plaintiff received formal admissions pursuant to requests made under Rule 3:36. Pretrial conference was held and a pretrial order was filed on November 2, 1949 which stated, in part, that the parties agreed that the matter 'may be submitted to the Court' upon the admissions and that certain documents referred to therein may be marked exhibits P-1 to P-26, inclusive, and 'are true and genuine.' Thereafter the plaintiff served and filed notice of motion pursuant to Rule 3:56 for summary judgment. Although the notice of motion was not accompanied by supporting affidavit it expressly stated that it was based on the pleadings, exhibits and admissions. See Fletcher v. Evening Star Newspaper Co., 77 U.S.App.D.C. 99, 133 F.2d 395 (D.C.Cir. 1942). The defendants filed no affidavits or any other proof whatever in opposition to the motion nor is there anything in the record which suggests that they then voiced objection to termination of the motion on the documents before the court. Those documents showed palpably that there was no genuine issue as to any material fact challenged and, in the absence of any showing by the defendants that they had a ground of defense, the plaintiff was entitled to summary judgment. Cf. Pen-Ken Gas & Oil Corp. v....
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