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Zabady v. Jefferson Frame

Decided: October 14, 1952.

JOHN ZABADY, PLAINTIFF-APPELLANT,
v.
JEFFERSON FRAME, DEFENDANT-RESPONDENT



McGeehan, Bigelow and Smalley. The opinion of the court was delivered by McGeehan, S.j.a.d. Bigelow, J.A.D. (dissenting).

Mcgeehan

On motion of the defendant, the complaint was dismissed in the Law Division of the Superior Court "for failure to state the essentials of a cause of action under R.S. 2:57-5."

The complaint contains four counts. The first count alleges that "On or about December 18, 1950" plaintiff and defendant entered into wagers or bets dependent upon the outcome of certain horse races; plaintiff lost said bets or wagers; as a result of said wagers or bets and plaintiff's loss thereof, plaintiff paid to defendant the sum of $900; and demand for judgment is made for $900, together with interest. Except for the substitution of another date for "December 18, 1950" and of a different amount paid and demanded, the other three counts are identical with the first count. The complaint was filed June 14, 1951.

Plaintiff concedes that his cause of action is purely statutory and depends upon R.S. 2:57-5 which, in pertinent part, provides:

"If any person shall lose any money * * * in violation of section 2:57-1 of this Title, and shall pay * * * the same * * * to the winner * * * such person may sue for and recover such money * * * from such winner * * * in an action at law founded on this chapter, in any court of this state having cognizance thereof; but such suit shall be brought within six calendar months after payment or delivery as aforesaid."

(R.S. 2:57-1 provides: "All wagers, bets or stakes made to depend upon any race * * * shall be unlawful.")

When a statute gives a remedy under particular circumstances, the party seeking such remedy must, in his pleading, allege all the facts necessary to bring him within the statute. The proviso of R.S. 2:57-5 that the suit shall be brought within six calendar months after payment or delivery operates as a limitation of the liability itself, as created, and not of the remedy alone; it is a condition attached to the right to sue at all, and compliance with this condition is an essential element of a cause of action brought under the statute. A complaint does not state a cause of action if it fails to contain an allegation showing compliance with this essential element. Shack v. Dickenhorst , 99 N.J.L. 120 (E. & A. 1923); cf. Lapsley, Adm'x. v. Public Service Corp. , 75 N.J.L. 266 (Sup. Ct. 1908); Seitter v. West Jersey &c. R.R. Co. , 79 N.J.L. 277 (Sup. Ct. 1910); cf. Matheny v. Porter , 158 F.2d 478 (C.C.A. 10, 1946).

The mere allegation that the payment or delivery was made "on or about" a specified date is not sufficient to meet the required test, even though it appears from the court records that the complaint was filed within six months after such specified date. Seitter v. West Jersey &c. R.R. Co. , above. As the court pointed out in the Seitter case, such a time limitation in a statute does not make any precise time material; all that is material is that the suit shall be brought within the time limitation set forth in the statute. The denial by the defendant of an allegation that "on or about" a certain date payment or delivery was made, would raise no material issue because proof that it occurred at any time within six months before the suit was instituted would justify the action.

Under our former practice, this complaint would have been dismissed for failure to state a cause of action. Shack v. Dickenhorst , above; Seitter v. West Jersey &c. R.R. Co. , above. The plaintiff argues, however, that a different result should be reached under our new rules. He cites federal

cases interpreting the Federal Civil Rules which, if followed in New Jersey, would support this argument, e.g., Bowles v. American Distilling Co., Inc. , 62 F. Supp. 20 (D.C.S.D.N.Y. 1945), appeal dismissed sub nom. Porter v. American Distilling Co., Inc. , 157 F.2d 1012 (C.C.A. 2, 1946). These federal cases can be of no aid to the plaintiff, because we are bound by the interpretation placed upon our new rules by our Supreme Court in Grobart v. The Society for Establishing Useful Manufactures , 2 N.J. 136 (1949) and Anderson v. Modica , 4 N.J. 383 (1950). In the Grobart and Anderson cases our Supreme Court pointed out that the substantive law has not been changed by the adoption of our new rules but, on the contrary, it has been preserved, and our procedure has been made to serve the ends of substantial justice, not by abandoning stating the essentials of a cause of action or of a defense, but by doing so in simple, concise and direct terms.

We are not concerned on this appeal with any question whether, under the circumstances, the plaintiff's motion for leave to amend his complaint should have been ...


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