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Sheild v. Welch

Decided: May 22, 1950.

KATHRYN T. SHEILD, PLAINTIFF-APPELLANT
v.
RAYMOND F. WELCH, EXECUTOR OF THE ESTATE OF L. F. WELCH, DEFENDANT-RESPONDENT



On appeal from Union County Court, Law Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld and Burling. For reversal -- None. The opinion of the court was delivered by Burling, J.

Burling

[4 NJ Page 564] This is an appeal by the plaintiff from a summary judgment entered by the Union County Court in favor of the defendant. The appeal was addressed to the Superior Court, Appellate Division, but has been certified here by this court on its own motion.

The plaintiff, a real estate broker, sought payment by the defendant of commissions allegedly due her as the result of a sale of certain real estate situated in the Town of Westfield, County of Union and State of New Jersey, owned by the estate of L. F. Welch and purchased by Joseph E. Waters and wife, who prior to the sale had been occupants of the premises so conveyed. The complaint did not allege that the claimed commissions were due as the result of the sale having been made by the plaintiff, but alleged that her right to a commission accrued under the provisions of a written lease agreement between the defendant and the tenant, Waters, in which the plaintiff was recognized as the broker negotiating the lease and the person to whom rental payments thereunder were to be made. The lease was executed on August 8, 1945, for a term of one year beginning September 1, 1945, and terminating September 1, 1946. The pertinent provisions of the lease upon which the action is predicated are as follows:

"And it is also understood and agreed that should there be a sale of the property herein mentioned between the parties hereto, or renewals or extensions of this lease by the parties within named, the same shall be considered as having been consummated by and through the agency of the above named broker as agent of said owner and with the hereto written authority of said owner, who hereby promises to pay the said agent in accordance with the existing established rates of the Board of Realtors of Westfield, New Jersey, such commission in the event of a sale or exchange to be due and payable when the price and terms are arranged between buyer and seller and the contract of sale or contract of exchange signed, or in the event of renewals or extensions of this lease, commission to be due and payable when the minds of tenant and landlord meet as evidenced by written contract or possession of property retained by tenant."

The tenant, Waters, remained in possession of the premises after September 1, 1946, but continued to make monthly rental payments to the plaintiff.

On May 4, 1948, the defendant and the tenant entered into a written contract for the sale and purchase of the premises. Pursuant thereto, a deed of conveyance was executed by the defendant. Thereafter the plaintiff demanded the payment of a commission on the sale and upon the defendant's refusal to

pay the same instituted suit therefor. The defendant's answer denied that any commissions were due the plaintiff and pleaded several separate defenses including the "Expiration of the lease, and termination of sale terms." A motion by the plaintiff for summary judgment was denied on March 2, 1949. Subsequently, at a pretrial conference the trial judge directed the submission of memoranda of law with reference to the issues involved. This direction was complied with and on December 20, 1949, the county court entered summary judgment in favor of the defendant. The present appeal seeks a review of the judgment as entered.

The first point raised by the plaintiff relates to the procedural propriety of the county court in entering summary judgment in favor of the defendant as a result of the pretrial conference in the absence of any notice by the defendant of a motion therefor. While this point was not set forth in or in any manner suggested by the statement of questions involved, in the plaintiff's brief, pursuant to the mandate of Rule 1:3-2(c) we have nevertheless given consideration to it. It is observed that summary judgment was not entered in favor of the defendant at the time argument was heard by the county court on the plaintiff's motion for summary judgment. At that time the court confined itself to a denial of the plaintiff's motion. Cf. Seire v. Police and Fire Pension Commission of Orange, 4 N.J. Super. 230 (App. Div. 1949); Rules 3:56-1 to 3:56-3. It is further observed that at the pretrial conference memoranda of law were directed to be submitted to the court; that such memoranda in which the parties stated their respective positions and their impressions of the applicable law were accordingly filed; that the memorandum filed by the defendant concluded with the following statement: "We respectfully submit that plaintiff is not entitled to a judgment, but that her action should be dismissed or a no cause entered."; and that thereafter the court entered summary judgment in favor of the defendant. Thus it appears that the opportunity to fully argue the substantive question was availed of by the respective parties. The court

concluded that the case resolved itself into a question of law and accordingly entered summary judgment for the defendant.

One of the purposes of a pretrial conference is to simplify and reduce the issues. Rule 3:16. Inherent in this process is the right of the court to dispose of questions of law. Our Rule 3:16, Pretrial Procedure, is substantially the same as the federal rule on this subject. F.R. 16. The federal rule has been construed to permit the court at a pretrial hearing to rule on the legal sufficiency of defenses, American Machine & Metals, Inc., v. De Bothezat Impeller Co., Inc., 82 F. Supp. 556, 12 Fed. Rules Serv. 42b.22, p. 544 (S.D.N.Y. 1949); Schram v. Kolowich, 2 F.R.D. 343, 6 Fed. Rules Serv. 16.21, p. 244 (E.D. Mich. 1942), and to dismiss an action when the admitted facts and proofs show no cause of action, Silvera v. Broadway Department Store, Inc., 35 F. Supp. 625 (S.D. Cal. 1940), or where the question involved is one ...


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