Molineux, J.c.c. (temporarily assigned).
This is a motion for summary judgment made on behalf of defendant Middlesex County Medical Society in an action instituted by plaintiff against it and against Middlesex General Hospital and St. Peter's General Hospital. An understanding of the issue herein raised calls for a resume of prior litigation between plaintiff and said medical society.
On October 22, 1958 plaintiff filed an action in lieu of prerogative writs against the Society alone, in which the complaint alleged generally that he had been duly licensed to practice medicine and surgery in the State of New Jersey by the State Board of Medical Examiners of New Jersey; that he had been denied membership in said Society notwithstanding that its constitution provided that its membership should be open to doctors of medicine who are registered to practice medicine in New Jersey subject to provisions of its bylaws; that such hospitals as St. Peter's General Hospital and Middlesex General Hospital would appoint no physicians as
members of their staffs, or permit any physician to treat any patient in the hospitals, or gain admission of a patient to the hospitals, unless the physician was a member of defendant Society; that as a result of his having been barred from such membership, plaintiff was barred from any connection with either of said hospitals; and that as a consequence thereof he had been denied the right to earn a livelihood and obtain the economic advantages to which he was justly entitled by reason of his license to practice medicine. The complaint in said action asked for relief by way of an order directing defendant Society to admit plaintiff as an active member, to adjudicate his rights with respect to the grievances alleged in his complaint, and for such other judgment as may be just and legal. After answer filed, pretrial, final hearing, and pursuant to an opinion of the late Judge Vogel reported in 62 N.J. Super. 184 (Law Div. 1960), Judge Vogel signed a judgment directing defendant Society to forthwith admit plaintiff to full membership in said Society, enjoining and restraining the Society from taking any action questioning his right to membership, and directing the Society to pay him the costs of the action to be taxed. On appeal the decision of Judge Vogel was affirmed by the Supreme Court, 34 N.J. 582. The decision of the Supreme Court was handed down on May 8, 1961.
On February 7, 1962 plaintiff filed his complaint herein, naming as defendants the Society, Middlesex General Hospital and St. Peter's General Hospital. Count 1 of the complaint alleges the malicious denial to plaintiff of the membership by the Society and malicious denial by the hospitals of his use thereof, alleges damage to him by reason thereof, and asks for a money judgment. Count 2 repeats in general the allegations of count 1 and adds a malicious conspiracy between the Society and the hospitals to injure plaintiff and destroy his professional practice. Count 3 alleges a conspiracy existing prior to September 1961 (apparently the date of the mandate of the Supreme Court in the prior case), and that the Society and the hospitals continued the conspiracy,
in that plaintiff is denied the use of the operating rooms of said hospitals and is refused admittance to their respective surgical staffs. Count 4 appears to be directed against the two hospitals alone, omitting the allegation of the conspiracy and alleging that each of said hospitals still continues to deny plaintiff admittance to the operating rooms of said hospitals and refuses to admit him to the surgical staffs. It appears that the fourth count is not directed against the Society.
Motion for summary judgment is made herein on the ground that the judgment in the prior litigation between plaintiff and the Society bars the instant action in that it was incumbent upon plaintiffs to process his claim for money damages in his first action, in order to avoid multiplicity of suits, and that his failure to do so bars a subsequent suit.
Obviously, this argument does not apply to the third count, which alleges a conspiracy by this defendant and the hospitals in failing to carry out the mandate of the court in the first action.
As noted above, the fourth count is not directed against the Society, so that this motion is not directed to said count.
That the policy of our courts is to avoid multiplicity of suits is beyond question. In Ajamian v. Schlanger , 14 N.J. 483 (1954), Mr. Justice Brennan said:
"The policy of the new practice contemplates that the Superior Court litigant not only should initially plead any legal and equitable claims or defenses, whether or not consistent, supporting his position in the controversy and seek all legal or equitable remedies which he may desire, but also, with the aid of the broad discovery and pretrial procedures by which he may obtain all the facts material to the positions of both sides, that he should avail himself of the liberality allowed to form and reform his pleadings and the pretrial order accordingly, the opportunities for such amendment being restricted, in any ...