Opinion
01-02-1937
LOGATTO v. BANTA et al.
Aaron Heller, of Passaic, for complainant. Winne & Banta, of Hackensack, for defendant Banta. Frank Eggers, of Jersey City, for defendant Overman.
Syllabus by the Court.
On a motion to strike a bill of complaint on the ground that it states no equitable cause of action, all the averments of the bill must be taken as true and cannot be contradicted by affidavits.
Suit by Charles Logatto against Warren C. Banta and others, wherein defendants filed a motion to dismiss the bill.
Motion denied.
Aaron Heller, of Passaic, for complainant.
Winne & Banta, of Hackensack, for defendant Banta.
Frank Eggers, of Jersey City, for defendant Overman.
LEWIS, Vice Chancellor.
This suit is now before the court on a motion made by defendant Banta to dismiss the bill on the ground that it states no equitable cause of action.
The bill, in substance, says that complainant, the owner of a bus line, and being indebted to certain creditors, arranged to incorporate the bus line, to borrow certain moneys to pay the debts, and to turn over stock of the corporation as security for the loan to be redeemed upon payment thereof.
The bill further alleges in substance that, upon demand being made for the payment of the loan, a sum much in excess of the amount actually due was demanded from him as a condition of redemption. It further alleges that he tendered the sum actually due, which was refused, and the stock was thereupon sold to another one of the defendants, who took with knowledge of complainant's rights.
Complainant further alleges that he has always been ready, willing, and able to make good his tender of the amount asserted by him to be due and prays that he be allowed to redeem for such sum, together with other incidental relief, so as to restore the status quo.
Affidavits have been presented to the court in support and in contradiction of certain of the allegations of the bill. The defendants' counsel stresses the affidavit filed on behalf of complainant, which it is contended gives a variation of the transactions between the parties which serves to contradict the allegation of the bill that complainant was ready, willing, and able to discharge the debt.
I do not see how the court can decide the issue on this aspect of the case on affidavits on the present motion, which is to strike the bill on the ground that it sets forth no cause of action.
By equity rule 67, demurrers are abolished and objections to the sufficiency of the pleadings are taken by motion.
On such a motion as in the case of a demurrer, the averments of the bill can alone be considered and all such averments must be accepted as true. Loudenslagerv. Pacific Improvement Company, 93 N.J.Eq. 218, 115 A. 752.
Under these circumstances, the motion to dismiss the bill must be denied and the matter proceed to final hearing.