On appeal from a judgment of the Supreme Court.
For the plaintiff-appellant, Thomas P. McKenna.
For the defendant-respondent, Snyder, Roberts & Pillsbury.
The opinion of the court was delivered by
WELLS, J. This is an appeal from a final judgment of the Supreme Court entered upon the order of Circuit Court Judge Robert V. Kinkead, sitting as Supreme Court Commissioner, striking an amended complaint filed by the plaintiff-appellant.
The amended complaint in addition to the common counts,
alleged that the defendant County of Monmouth, was indebted to plaintiff for its services, at statutory rates, for printing and publishing during the years 1930, 1931 and 1932 official sheriff's sales advertisements, in plaintiff's newspaper, The Daily Record; and especially alleged that the County, acting by and through its then sheriff, William R. O'Brien, as its agent employed the services of plaintiff, who at the special instance and request of said County, and upon its credit, by the direction of said sheriff, who therein was acting as the agent of said County, and in pursuance to the duties required by law to be performed by the County, did print and publish the legal advertisements of notices of sales of properties as specified in the schedule annexed to said complaint and that said sales were conducted and the proceeds therefrom, including the costs of the said advertisements were duly accounted for to the County by said sheriff as required by law and were duly paid to and received by the County.
The defendant moved to strike the amended complaint on the ground that it did not disclose a cause of action against the defendant, in that:
1. There was no liability upon the County to pay the obligations incurred by William R. O'Brien as sheriff of the county;
2. That the services performed as alleged in said complaint were not rendered at or by the request of the County nor was there any obligation on the County to meet the same.
3. The allegations of said complaint were sham.
On its motion to strike the amended complaint the defendant submitted supporting affidavits that the records of the Board of Chosen Freeholders of said County disclosed no authority for the charges of plaintiff as set forth in the complaint, nor authorization to the plaintiff by the board obligating the County or agreeing to a payment for advertising fees incurred by Sheriff O'Brien during the period in question or at any time; nor any obligation by the County to plaintiff under the common counts and that the County did not receive any moneys for the use of the ...