Trautwein v. Bozzo

39 N.J. Super. 267 (1956)

120 A.2d 788

RAYMOND TRAUTWEIN, PLAINTIFF-RESPONDENT, v. JAMES J. BOZZO AND MODESTO BOZZO, HIS WIFE, DEFENDANTS-APPELLANTS.

Superior Court of New Jersey, Appellate Division.

Argued February 20, 1956.

Decided February 28, 1956.

Before Judges CLAPP, JAYNE and FRANCIS.

Mr. Martin L. Haines argued the cause for appellants (Messrs. Dimon, Haines & Bunting, attorneys).

*268 Mr. Robert E. Dietz argued the cause for respondent (Messrs. Powell & Davis, attorneys; Mr. James M. Davis, Jr., of counsel).

The opinion of the court was delivered PER CURIAM.

The judgment is affirmed for the reasons expressed in the opinion of Judge Goldmann reported in 35 N.J. Super. 270 (Ch. Div. 1955).

We feel constrained to add that the defendants sought for the first time in the litigation to invoke on this appeal the equitable doctrine of unclean hands adversely to the plaintiff's cause of action. While we believe that the presentation of that contention by the defendants is a "matter constituting an avoidance or affirmative defense" to be averred within the import of R.R. 4:8-3, we do not doubt the right of the trial or appellate court to recognize, sua sponte, the principle in the interests of justice and public policy where justified by the circumstances. Medical Fabrics Co. v. D.C. McLintock Co., 12 N.J. Super. 177 (App. Div. 1951). We are not persuaded that the facts as resolved in the present action warranted the application of the principle.