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Torricelli v. Sebastini

Decided: March 27, 1934.

EDWARD TORRICELLI, PLAINTIFF-RESPONDENT,
v.
SAMUEL SEBASTINI, DEFENDANT-APPELLANT



On appeal from a judgment of the Hudson County Court of Common Pleas.

For the appellant, Terry Parker.

For the respondent, Gaetano M. Belfatto.

Before Brogan, Chief Justice, and Justices Trenchard and Heher.

Heher

The opinion of the court was delivered by

HEHER, J. The answer interposed by defendant was struck out, on the ground that it "discloses no defense" to the pleaded cause of action, and summary judgment for plaintiff entered. Defendant appeals.

The complaint alleges that on January 2d, 1929, defendant employed plaintiff "from year to year," as a sales agent, and agreed to pay, as compensation for such service, $35 per week "during said term;" and that on July 1st, 1933, defendant, "contrary to the terms of said employment," discharged plaintiff. The complaint is in two counts. The first demands earned and unpaid compensation for the period beginning January 2d, 1933, and ending July 1st, 1933, totaling the sum of $945. The second avers the "loss of twenty-five weeks' employment from July 1st (1933), to January 2d, 1934," at the stipulated weekly rate, or a total sum of $875. Judgment was entered for $1,828, the full sum claimed.

The answer contains a general denial of the allegations of the complaint, and, by a separate defense, sets up that defendant had paid to plaintiff "all sums found due on an accounting between" them, "in full of the plaintiff's said claim."

The answer was improperly struck out. The order was predicated on the conclusion that it "discloses no defense" to the pleaded causes of action. But the premise is erroneous. There was a general denial of the allegations of the complaint. A plea in this form has the sanction of statute and the rules of the court.

Rule 40 of the general rules made a part of the Practice act of 1912 (Pamph. L. 1912, pp. 377, 391), now rule 58

of the Supreme Court, provides that the answer must specially deny such allegations of fact in the complaint as the defendant intends to controvert, "unless he intends in good faith to controvert all the allegations; in that case he may deny them generally." He must specially state only such defense as is "consistent with the truth of the material allegations of the complaint, and any defense which, if not stated, would be likely to cause surprise, or would raise issues not arising out of the complaint," such as the statute of frauds, or of limitations, release, payment, performance, or facts showing fraud, illegality, or contributory negligence.

At common law it was a well settled practice to put the other party to his proof by a traverse, and add a plea or pleas in confession and avoidance. Gross v. New York Central Railroad Co., 99 N.J.L. 414. The general denial sanctioned by the statute is the equivalent of the general issue under the common law. Such a plea denies the entire claim of the plaintiff, and raises an ...


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