Malberti v. United Electric Co.

Supreme Court of New Jersey

Malberti v. United Electric Co.

54 A. 251, 69 N.J.L. 55, 40 Vroom 55, 1903 N.J. Sup. Ct. LEXIS 139

DecidedFebruary 24, 1903

StatusPublished

This text of 54 A. 251 (Malberti v. United Electric Co.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Malberti v. United Electric Co., 54 A. 251, 69 N.J.L. 55, 40 Vroom 55, 1903 N.J. Sup. Ct. LEXIS 139 (N.J. 1903).

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Opinion

The opinion of the court was delivered by

Fort, J.

This is a demurrer to a declaration. The declaration contains two counts. Both counts are inartistieally drawn; they can truly be styled imperfect and lacking in form. It is probable that if the demurrer were not a general one, but was to the second count only, it would have been sustained. But mere imperfection or lack of form in pleading are not now good grounds for demurrer. Gen. Slat., p. 2557, § 139.

It is quite difficult to grasp the pleader’s method of statement or his ground of liability on the part of the defendant company, but the court after much reflection is unable to say that the first count in the declaration does not allege a duty to the plaintiff, as one of the public, which the defendant has failed to perform, and which failure has resulted in injury to the plaintiff through no fault of his own. It is quite evident that this declaration would be stricken out upon notice under section 132 of the Practice act as being so defective or so framed as to prejudice, embarrass or delay a fair trial of the action. This is the better practice as was suggested in Minucci v. Philadelphia and Reading Railroad Co., 39 Vroom 432.

The demurrer in this ease is overruled, with costs, but without prejudice to the right of the defendant to move to strike out the declaration.

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The opinion of the court was delivered by

Fort, J.

This is a demurrer to a declaration. The declaration contains two counts. Both counts are inartistieally drawn; they can truly be styled imperfect and lacking in form. It is probable that if the demurrer were not a general one, but was to the second count only, it would have been sustained. But mere imperfection or lack of form in pleading are not now good grounds for demurrer. Gen. Slat., p. 2557, § 139.

It is quite difficult to grasp the pleader’s method of statement or his ground of liability on the part of the defendant company, but the court after much reflection is unable to say that the first count in the declaration does not allege a duty to the plaintiff, as one of the public, which the defendant has failed to perform, and which failure has resulted in injury to the plaintiff through no fault of his own. It is quite evident that this declaration would be stricken out upon notice under section 132 of the Practice act as being so defective or so framed as to prejudice, embarrass or delay a fair trial of the action. This is the better practice as was suggested in Minucci v. Philadelphia and Reading Railroad Co., 39 Vroom 432.

The demurrer in this ease is overruled, with costs, but without prejudice to the right of the defendant to move to strike out the declaration.

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Bluebook (online)

54 A. 251, 69 N.J.L. 55, 40 Vroom 55, 1903 N.J. Sup. Ct. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malberti-v-united-electric-co-nj-1903.

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