Motion for summary judgment for dismissal of complaint.
Tenenbaum, J.c.c. (temporarily assigned).
The plaintiff, Anthony De Carlucci, instituted suit sounding in tort, the gravamen of which complaint charges each defendant, Hyman Brasley and Ernest Hayen, with negligence, individually and jointly, in the operation of their respective motor vehicles, as a result of which he claimed damage to his automobile and personal injuries alleged to have been sustained by him, for all of which he sought damages.
The defendant, Ernest Hayen, by his counsel, Markley & Broadhurst, Esquires, filed his answer admitting ownership of the motor vehicle mentioned in the complaint, but made a general denial of all the other averments and interposed the defenses: (a) that the accident, and the resultant damages and injuries alleged, were the result of the negligence of the defendant, Hyman Brasley; (b) contributory negligence of the plaintiff, Anthony De Carlucci; (c) that the accident was solely and proximately caused by a person or persons other
than the defendant, Ernest Hayen, over whom he had no control. He likewise asserted a crossclaim against the defendant, Hyman Brasley, charging him with negligence, alleging it was the proximate cause of the accident and the resultant damage to his automobile, for which he sought recovery. Additionally, he advanced a counterclaim against the plaintiff, charging him with negligence which he avers was the proximate cause of the accident and the resultant damage to the defendant-counterclaimant's automobile, for which he sought recovery from the plaintiff.
Thus the issues were framed, and at some stage in the proceedings before trial an agent of the Commercial Casualty Insurance Company, the plaintiff's insurance carrier, settled the counterclaim of the defendant, Ernest Hayen, against the plaintiff for $150 and for that consideration accepted a release for the said amount running from Ernest Hayen to the plaintiff.
The defendant, Ernest Hayen, thereafter moved for an order of summary judgment of dismissal of the plaintiff's suit against him, urging for success the pronouncement in Kelleher v. Lozzi , 7 N.J. 17, 80 A. 2 d 196 (1951). To support the motion, James B. Emory, Esquire, a member of the firm of Markley & Broadhurst, Esquires, attorneys for defendant-counterclaimant, filed his affidavit alleging, inter alia:
"1. I am an Attorney and Counsellor at Law of the State of New Jersey, and a member of the firm of Markley & Broadhurst, Attorneys for the Defendant, Ernest Hayen, and the person in charge of the handling of this matter.
2. On March 1, 1951, Mr. Wertheimer of the Commercial Casualty Insurance Company, who carried the liability insurance on the automobile of the plaintiff, offered to settle the counterclaim of the defendant, Ernest Hayen, for $150.00. I accepted that offer and pursuant thereto, mailed to Mr. Wertheimer a Stipulation of Dismissal and a Release executed on April 12, 1951; said Release reciting the above stated consideration of $150.00, and running from Ernest Hayen to the plaintiff, Anthony DeCarlucci.
3. Subsequent thereto the said sum of $150.00 was paid to the defendant by a check of the Commercial Casualty Insurance Company; said check being made payable to Ernest Hayen and Markley & Broadhurst, Attorneys."
The plaintiff, in resisting the motion, filed an affidavit alleging that Mr. Wertheimer of the Commercial Casualty Insurance Company was not his agent or representative, and that he never authorized the insurance company to settle any claims for personal injury or property damage, and further that the only authority that the Commercial Casualty Insurance Company had from him was to appear in defense of the counterclaim, ...