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Board of Education v. Kane Acoustical Co.

Decided: July 14, 1958.

BOARD OF EDUCATION, TOWNSHIP OF WOODBRIDGE, PLAINTIFF-APPELLANT,
v.
KANE ACOUSTICAL COMPANY, INC., A CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT



Stanton, Hall and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

Pursuant to leave granted under R.R. 2:2-3, plaintiff appeals from an order which purports to amend defendant's answer.

The complaint, in three paragraphs, alleges that the plaintiff, the Board of Education, Township of Woodbridge (hereafter called Woodbridge), "was the owner of a partially completed school building which was in the course of construction," and that defendant "negligently caused a fire to occur on said premises," as a result of which "plaintiff was compelled to expend * * * money to repair and replace portions of the building," for which plaintiff demands damages. The answer, filed March 5, 1957 and equally brief, denies everything but ownership, and alleges that "the fire * * * was caused by the acts of others."

The pretrial order, dated November 13, 1957, says:

"2. Plt contends that, Kane Acoustical Co., the def, under the terms of a contract, was installing acoustical tile in a new school * * * at which time there had been installed in the corridor of the school gas salamanders of propane gas, which had ignited, giving heat for the drying of the plaster walls, when Carl Rapaport, an employee of the def was pushing a buggy containing boxes of acoustical tile along the corridor when he negligently knocked over with the buggy a lighted gas salamander, which caused the hose to become disconnected, causing extensive fire damage to the building.

3. Def contends that it had nothing to do with the cause of the fire that damaged the school building and further contends that the fire was caused by the servants, agents and/or employees of William J. Lyons Construction Co.

5. Pltf claims $16,949.27 damages."

The pretrial order then says:

"6. Def given leave to assert contributory negligence, estoppel through its agent servants and employees.

7. Contributory negligence estoppel, liability and damages."

At the very bottom of the pretrial order, after paragraph 16, which fixed November 27, 1957 as the date for trial, this appears:

"Def is given leave to argue on a motion day prior to trial matter of enlarging amendments to his answer."

The most important purpose of a pretrial order is to have each side state fully what it intends to prove, and why. In the pretrial order in this case the defendant says nothing, either against the charge that Rapaport was its agent, and caused the fire in the manner stated, or about any of the contentions it now advances. No explanation is given of what defendant meant by "Contributory negligence" or "estoppel." Defendant should not have been given "leave to assert contributory negligence, estoppel through its agent servants and employees" in this fashion, without limitation or explanation. Indeed, except where a requested amendment is minor, formal, self-explanatory, or based upon sufficiently complete facts already set forth in the pretrial order or the pleadings, the proper practice is not to give leave to amend unless the proposed amendment is exhibited to the court, preferably by being attached to the notice of motion. Neither the trial court nor the opposing party should "buy a pig in a poke in the shape of an undisclosed amendment." Grobart v. Society for Establishing Useful Manufactures , 2 N.J. 136, 146 (1949); Marsh and Vogel , 3 N.J. Practice, secs. 627-629 (1950). Seeing the proposed amendment enables the court to study it carefully before ...


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