The above entitled matter came before this court on defendant's motion for summary judgment and plaintiff's cross-motion for an order amending the complaint.
The plaintiff, Ann Eskon, filed a complaint on February 14, 1961 alleging that on or about March 13, 1959, while she was walking on the public sidewalk abutting defendant's premises, she was caused to slip and fall due to defendant's negligence in improperly clearing ice and snow from its sidewalk. Further, that defendant's failure to clear a portion of the sidewalk so hampered the use of the public sidewalk that it constituted a nuisance which increased the hazard and proximately caused plaintiff's fall and resultant injuries.
Summons was served February 23, 1961 upon "Four Star Realty Co. at its usual place of business, 245 South Street, Newark, New Jersey, by delivering a copy thereof together with a copy of the complaint to William Loeffler, managing agent."
The complaint which listed the defendant as "Four Star Realty Co., a corporation," set out that at the time of the alleged accident and injury the defendant, Four Star Realty Co., a corporation, owned, managed, operated and was in control of certain premises situated at and known as 50 South Harrison Street, East Orange, New Jersey.
The defendant filed an answer on March 10, 1961 denying all of the allegations of the complaint, and then by way of separate defenses charged plaintiff with contributory negligence and assumption of risk, unavoidable accident, and additionally, that the injury to plaintiff was caused by a third person over whom defendant had no control.
On March 9, 1961 defendant served interrogatories upon the plaintiff, and upon plaintiff's failure to serve answers thereto moved for an order dismissing the action pursuant to R.R. 4:22-4. Thereafter, on May 26, 1961 plaintiff was ordered to serve answers to the interrogatories within 30 days.
This motion for summary judgment was filed on September 7, 1961. Defendant's main argument in support of the motion is set out as follows:
"The Plaintiff Has Failed To State A Claim Against The Moving Party In That Said Party Is Not The Proper Defendant And Not The Owner Of The Premises Where The Alleged Incident Occurred."
The thrust of defendant's argument is that the complaint named as defendant Four Star Realty Co., a corporation, and that such a defendant does not exist. Four Star Realty Co., a partnership , does in fact exist but said partnership does not own, manage, operate or control premises located at 50 South Harrison Street. Further, that William Loeffler the party upon whom service of the summons was made, is in no way associated with the partnership "Four Star Realty Company," a fact which makes the service of process a nullity.
Anticipating a motion by plaintiff to amend the complaint, defendant in its brief argues that the granting of such a motion would in effect bring into court a defendant who had never been served with a summons and would re-create a cause of action which existed but which has expired by reason of the two-year limitation imposed by N.J.S. 2A:14-2.
On October 23, 1961 plaintiff filed a cross-motion to amend the complaint, which would change the defendant's name to "Four Star Realty Co., a partnership" instead of "Four Star Realty Co., a corporation," and to change the street number of the premises upon which plaintiff claims her fall occurred from "50 South Harrison Street, East
Orange, New Jersey" to "56 South Harrison Street, East Orange, New Jersey."
Plaintiff takes the position that pursuant to R.R. 4:12-8 the defendant has waived any applicable defenses enumerated in R.R. 4:12-2. Further, that defendant should be estopped from raising the aforesaid defenses on equitable grounds, and in any event, since the intended defendant has made a general appearance, it is subject to the jurisdiction of this court.
Initially plaintiff argues that pursuant to R.R. 4:15-1 amendments to pleadings should be freely given. While it is true that permission to amend is to be given freely when justice requires, Jersey City v. Hague , 18 N.J. 584, 602 (1955), it is also to be considered that such applications are not mere formalities but that they "involve the exercise of the sound discretion of the court." Associated ...