On appeal from the Supreme Court.
For the appellant, Joseph J. Corn.
For the respondent, Lionel P. Kristeller (James A. Castner, on the brief).
The opinion of the court was delivered by
PERSKIE, J. We desire, in limine, to make the observation that we are not to be understood, in our determination of this cause, as in anywise departing from "the ancient rule of law that error (now appeal) will lie only after final judgment" (Salaman v. Equitable Trust Co., 105 N.J.L. 649; 146 A. 423; Lully v. National Surety Co., 106 N.J.L. 81, 85; 148 A. 762), and that "an appeal does not lie from an order granting a motion to strike out the cause of action contained in the complaint." Lully v. National Surety Co., supra. But a writ of error (now appeal) does lie in all cases where the decision of the lower court is final, and has not proceeded from a matter resting in discretion. Cf. Eames v. Stiles, 31 N.J.L. 490; Allgair v. Hickman, 82 Id. 369; 81 A. 752; Hanford v. Duchastel, 87 N.J.L. 205; 93 A. 586; Jaudel v. Schoelzke, 95 N.J.L. 171; 112 A. 328. The right of appeal from a judgment of nonsuit is well settled. Rutherford v. Fen, 21 N.J.L. 700; Jaudel v. Schoelzke, supra.
We think the learned judge fell into reversible error.
First: Nowhere is it brought to our attention, nor do we perceive anything, which can possibly be characterized as false about the facts set forth in the complaint. The opposite, in fact, appears to be true. Obviously, therefore, the complaint is not sham. Cf. National Surety Co. v. Mulligan, 105 N.J.L. 336 (at p. 338 and cases there cited); 146 A. 372. It is, moreover, well settled that the power to strike a pleading as sham, frivolous or false will not be exercised unless it clearly and palpably appears to be so. The cautious exercise of such power is imperative. Louis Kamm, Inc., v. Flink, 113 N.J.L. 582; 175 A. 62. Thus it has been said repeatedly, that the duty of the court, on such a motion, is to determine whether an issue of fact is presented, and not to try the issue on affidavits. It is only where the matters set up in the affidavits submitted on the part of the defendants are not controverted, and demonstrate that the cause of action pleaded is a sham, and is without factual support, that the court is justified in granting the motion. See Solomon v. Salins, 108 N.J.L. 214; 157 A. 383; Jaeger v. Naef, 112 N.J.L. 417; 171 A. 166; Torricelli v. Sebastini, 112 N.J.L. 458; 171 A. 526; Louis Kamm, Inc., v. Flink, supra (at p. 596 of 113 N.J.L. There was no such proof in the case at bar. Defendant did not even attempt to deny, much less to demonstrate, the falsity of the facts as pleaded by the plaintiff.
Second: Was the allegation in defendant's affidavit, based on plaintiff's answer to the bill of particulars, that plaintiff's alleged cause of action was predicated on an oral agreement in violation of section 5 of the statute of frauds, sufficient to justify the learned judge in concluding that the complaint did not set forth a legal cause of action? We think not.
(a) A bill of particulars furnished is no part of the record of the case and cannot be used on a motion to strike a pleading. "The theory of ordering particulars is to limit the proof to matters specified in the bill of particulars and to enable the other party to meet his opponent's proof without danger of surprise. Consequently, such bills have relation to the
trial and not to the record." State v. Lehigh Valley Railroad Co., 94 N.J.L. 171, 174; 111 A. 257. The same theory applies to civil cases. Cassatt v. First National Bank of West New York, New Jersey, 9 N.J. Mis. R. 848; 156 A. 278; Tierney v. Tierney, 13 N.J. Mis. R. 654, 656, et seq.; 179 A. 314; Wolfson v. Mills, 112 N.J.L. 1; 169 A. 359.
(b) In order to be available as a defense, the statute of frauds, like the statute of limitations, the pleas of release, payment, performance, or of facts showing frauds, illegality, or contributory negligence, must be specifically pleaded. Supreme Court rule No. 58 (rule 40, Practice act of 1912). Thus the statute of frauds cannot be raised under the ...