Di Fabio v. Southard

• Decision Date: 01 May 1930
• Citation: 150 A. 248
• Parties: DI FABIO et al v. SOUTHARD et al.
• Court: New Jersey Court of Chancery

150 A. 248

DI FABIO et al

v. SOUTHARD et al.

Court of Chancery of New Jersey.

May 1, 1930.

Syllabus by the Court.

In a bill of complaint filed under the Uniform Declaratory Judgments Act, defendant may move to strike out the bill on the ground that the facts therein do not show that complainant has rights against defendant, with respect to which complainant is entitled to present relief.

Syllabus by the Court.

The Court of Chancery should not, under said act, undertake to decide or declare the rights or status of parties upon a state of facts which is future, contingent, and uncertain.

Suit by Felix Di Fabio and others against Mary Alice Southard and others. On motion to strike out the bill of complaint.

Decree of dismissal advised.

Carl H. Warsinski, of Cranford, for complainants.

Lintott, Kahrs & Young, of Newark, for defendants Southard.

CHURCH, Vice Chancellor.

This is a motion to strike out the bill of complaint filed under the provisions of the Uniform Declaratory Judgments Act (P. L. 1924, chapter 140, page 312). The facts, as admitted, are as follows:

Beekman Trading Company was the owner of a large tract of land situated in Cranford, N. J. Said company conveyed parts of said tract to various purchasers, and each conveyance contained a set of restrictions following a general scheme.

The portion of said restrictions which is pertinent to this case is as follows: "That each building lot shall be not less than seventy-five feet wide and shall be used only for the erection of one two and one-half story, one-family dwelling house, to cost not less than $11,000; that the front foundation thereof shall stand on a line fifty-two and one-half feet from the measured line, and that the said foundation shall stand on a line not nearer than twenty feet from the said line of the lot."

Complainants and defendants are now the owners of certain plots, having purchased the same from the aforesaid Beekman Trading Company, and said plots are subject to the aforesaid general scheme of restrictions, except that the complainants are restricted from building a house at a cost of not less than $11,000, whereas the defendants may erect a house at a cost of not less than $8,000.

Complainants allege in the bill of complaint that they are under contract to convey said premises, and that the purchaser has refused to take title on the ground that said building violates the restrictions mentioned above, in that the foundation stands nearer than twenty feet from the side line of the lot.

Complainants claim that the building does not violate the restrictions, although they admit that there is a slight deviation, which they allege is inconsequential.

Complainants...