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Orrok v. Parmigiani

Decided: September 16, 1954.

DAVID P. ORROK AND ETHEL ORROK, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
JOHN PARMIGIANI, INDIVIDUALLY AND TRADING AS PARMIE'S AGENCY, DEFENDANT-RESPONDENT



Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Goldmann, J.A.D.

Goldmann

[32 NJSuper Page 72] Plaintiffs appeal from an order of the County Court, entered on defendant's motion, dismissing their complaint and amended complaint for failure to state a claim upon which relief can be granted. R.R. 4:12-2(e). The basis of the court's action was that the oral agreement

on which plaintiffs' suit was based was within the statute of frauds. R.S. 25:1-5(d).

The background of this litigation is a written agreement whereby plaintiffs agreed to purchase from Garden Homes Construction Co. a certain house in Morris Township then in the process of construction. Defendant, a real estate broker, negotiated the deal. This contract is not involved in the present case.

The original complaint alleged that plaintiffs and defendant had entered into a contract for the purchase of this property through defendant as broker; that plaintiffs initially deposited with him $1,000, and later $4,000 more, to be paid on account of the purchase price in case the sale was completed and a deed conveying good title delivered to plaintiffs, as specified in the agreement; and that defendant failed to deliver to the seller the $5,000 so deposited or to repay it to plaintiffs. Plaintiffs sued for the return of the monies. Defendant's answer denied these allegations and set up two separate defenses: (1) the agreement between plaintiffs and defendant violated the statute of frauds because it was not in writing; (2) the complaint failed to set out a cause of action, and defendant reserved the right to move to dismiss the complaint at or before trial. Such a motion was duly served. Attached to it were affidavits of defendant, one of his salesmen, and the president of Garden Homes Construction Co. stating in detail what had transpired in connection with plaintiffs' purchase of the property in question. We shall refer to these affidavits shortly.

Plaintiffs then moved to amend their complaint, attaching to the motion the proposed amendment and the affidavit of Mr. Orrok briefly reciting his version of the real estate transaction. On the return day of this motion the court also considered defendant's motion to dismiss the complaint. The motion to amend was granted and defendant then and there filed his amended answer.

As amended, the complaint recites an agreement between plaintiffs and defendant for the purchase through defendant as real estate broker of the property in question; that plaintiffs

had deposited with defendant $4,000 of the purchase price, upon the express condition that the money should not be paid over to Garden Homes Construction Co. unless and until a deed conveying good title was delivered to plaintiffs; that defendant, in violation of this express agreement, delivered the $4,000 to the owner without first procuring a deed; that plaintiffs have never received a deed nor has defendant ever returned the $4,000 so deposited with him. The amended answer again denied the allegations and by way of separate defenses alleged: (1) there was no agreement in writing between plaintiffs and defendant, contrary to the requirements of the statute of frauds; (2) the amended complaint failed to set forth a cause of action; and (3) laches and estoppel.

It was conceded that the agreement set out in the complaint was oral, and that defendant had no interest in the premises, nor in Garden Homes Construction Co., the corporate owner, either by way of office or stockholding.

A motion to dismiss under R.R. 4:12-2(e) for failure to state a claim upon which relief can be granted, performs substantially the same function as the common law demurrer and its equivalent under the former practice, the motion to strike a pleading on the ground that it discloses no cause of action. Such a motion, like the demurrer, admits the truth of all well-pleaded material allegations, and all facts reasonably inferred therefrom, appearing on the face of the claim and any amendments and supplements thereto. DeMarco v. Estlow , 18 N.J. Super. 30 (Ch. Div. 1952), affirmed per curiam 21 N.J. Super. 356 (App. Div. 1952). Unless the court permits the scope of the motion to be enlarged as permitted by the rule, the inquiry on the motion is confined to the consideration of the legal sufficiency of the alleged facts apparent on the face of the challenged claim.

The statute of frauds, R.S. 25:1-5, provides:

"No action shall be brought upon any of the following agreements or premises, unless the agreement or promise, upon which such action shall be brought or some ...


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