Bier v. Walbaum

• Citation: 131 A. 888
• Decision Date: 01 February 1926
• Docket Number: No. 108.,108.
• Parties: BIER et al. v. WALBAUM et ux.
• Court: United States State Supreme Court (New Jersey)

131 A. 888

BIER et al.

v. WALBAUM et ux.

No. 108.

Court of Errors and Appeals of New Jersey.

Feb. 1, 1926.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Jozf Bier and others against Gottfried Walbaum and wife. Judgment for plaintiffs, and defendants appeal. Affirmed.

David Stewart Edgar and John W. Ockford, both of New York City, for appellants.

Tiffany, Brugler & Wittreich, of Hoboken, for respondents.

BLACK, J. This suit was instituted to recover $3,035, a deposit and the cost of a survey, under an agreement, dated May 22, 1924, for the purchase of the property located on the southwesterly corner of Hudson and Ninth streets in the city of Hoboken.

The meritorious question involved in the appeal arises out of the agreement, viz. whether the title to the premises is "unmarketable," and whether "there are no encroachments thereon and that the buildings comply with municipal ordinances and regulations?" The trial resulted in a verdict for the plaintiffs. The only questions argued are whether it was error for the trial court to refuse a motion to nonsuit the plaintiffs or to direct a verdict in favor of the defendants. These motions were based on the ground that the testimony showed there was no jury question involved. There is some evidence which makes a jury question. The denial of the motions by the trial judge was not error. It would serve no useful purpose to recite the testimony and analyze it in detail. Suffice it to say that James V. Hogan, Jr., a witness, testified that he made the survey and map; that by profession he is a civil engineer and surveyor; that he was familiar with the streets and street lots in the city of Hoboken; that Hudson and Ninth streets are used as public thoroughfares; that the map was made from the original data and survey. The map, Exhibit P. 3, show that the iron ornamental fence, built on a concrete foundation, encroached on Hudson street in front from 17 feet 9 1/2 inches to 17 feet 0 inches. Brownstone stoop and hand rail encroaches on Hudson street 7 feet and 10 inches. Ornamental concrete and iron fence encroaches on Ninth street (a) in front 6 inches; (b) in rear 5.8 inches. Northerly face of building encroaches on Ninth street (a) in front one-fourth of an inch; (b) in rear one-half inch. Vestibule, southwest corner of building, encroaches on the property adjoining on the south 8 1/2 inches. Center of southerly boundary wall over line (a) front one-half inch; (b) rear three-fourths of an inch. Wooden fence over in rear (a) front 1 3/4 inches; (b) southwesterly corner 4 3/4 inches.

An ordinance of the city of Hoboken, passed July 18, 1917, was introduced in evidence as Exhibit P. 2, which declares "all stoops, steps, etc., erected over or upon any...