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Puccio v. Cuthbertson

Decided: October 3, 1952.

MARJORIE PUCCIO AND HARRY PUCCIO, PLAINTIFFS-APPELLANTS,
v.
GERALD CUTHBERTSON AND WALTER CUTHBERTSON, DEFENDANTS-RESPONDENTS



Eastwood, Goldmann and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.

Eastwood

On motion of the defendants, the Law Division dismissed the complaint without prejudice, on the ground it failed to set forth a cause of action. The plaintiffs appealed from the ensuing judgment.

Aside from the recitals of ownership, possession and control of the premises in the defendants, and that the status

of the plaintiff, Marjorie Puccio, was that of an invitee, the complaint alleges that (1) "The said building and premises was negligently and carelessly constructed, and negligently and carelessly kept and maintained by the defendants, inasmuch as there was a porch upon the front thereof which contained no guard rail and no light, causing a dangerous condition which was well known to the defendants"; (2) "The defendants constructed, kept and maintained the front porch of their said house and premises in such an improper, careless, reckless and dangerous manner so as to constitute and maintain a nuisance and a source of great danger to persons lawfully on the said premises"; that as a result thereof, Mrs. Puccio fell and was injured. Plaintiff, Harry Puccio, sues per quod. The defendants filed an answer denying the allegations of the complaint.

The defendants' notice of motion for judgment on the pleadings was returnable at the scheduled pretrial conference. At the conclusion of the argument of the motion, the complaint was dismissed. Prior thereto, opportunity was given to plaintiffs to amend their complaint, but they declined to do so.

The Superior Court rules governing general rules of pleading provide that:

"A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a statement of the facts on which the claim is based showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. * * *" Rule 3:8-1.

Under the provisions of Rule 3:8-5, it is provided that:

"Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required."

And Rule 3:8-6, provides:

"All pleadings shall be so construed as to do ...


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