Opinion
03-14-1912
MAYOR, ETC., OF CITY OF MORRISTOWN v. MORRIS & SOMERSET CO. et al.
Willard W. Cutler, of Morristown, for the motion. Charlton A. Reed, of Morristown, opposed.
Suit by the Mayor, etc., of City of Morristown against the Morris & Somerset Company and others. On motion to strike plaintiff's bill under rule 213. Denied.
Willard W. Cutler, of Morristown, for the motion.
Charlton A. Reed, of Morristown, opposed.
HOWELL, V. C. The reasons given in the notice of the motion to strike this bill from the files can be reduced to (1) multifariousness; (2) want of equity. I do not think that either reason can prevail.
The rule against multifariousness is one of convenience largely. In order that it may prevail, it ought to appear on the face of the bill that the court would be embarrassed in a making of a decree which should do justice to all parties on the facts set out in the bill. In this case I am of opinion that the corporations which are made parties are necessarily made parties, and that without them all the court probably would not be able to make a satisfactory decree. The latest exposition of the law on this subject is to be found in See v. Heppenheimer, 55 N. J. Eq. 240, 36 Atl. 966, affirmed Naumberg v. See, 56 N. J. Eq. 453, 41 Atl. 1116, and Shutts v. United Box Board & Paper Company, 67 N. J. Eq. 225, 58 Atl. 1075.
The other objection is to the want of equity in the bill. It is made in these general words "because the bill of complaint does not set out an equitable cause of action." In Essex PaPer Company v. Greacen, 45 N. J. Eq. 504, 19 Atl. 466, Vice Chancellor Van Fleet held that a simple statement of want of equity in the usual language of a general demurrer would constitute a sufficient specification of that ground of demurrer in cases where the court finds on looking at the complainant's bill that his right to relief is doubtful or uncertain, but that, where the defect is obscure or latent to such an extent that the court on inspecting the complainant's bill could not readily discern it, there the objection would not be sufficiently stated. Rule 209 requires that every demurrer, whether general or special, shall distinctly specify the ground or the several grounds of demurrer, and rule 213, which provides for a substituted practice, requires that the notice under that rule must state the particular ground or grounds of objection. The present bill upon a cursory examination does not appear to me to be defective. A closer specification of the reasons might, however, disclose defects which are not on the surface.
For these reasons, the motion must be denied.