Grossman v. Abate, C--322

• Decision Date: 29 April 1952
• Docket Number: No. C--322,C--322
• Citation: 88 A.2d 658,19 N.J.Super. 516
• Parties: GROSSMAN v. ABATE et al.
• Court: New Jersey Superior Court

Page 516

19 N.J.Super. 516

88 A.2d 658

GROSSMAN v. ABATE et al.

No. C--322.

Superior Court of New Jersey, Chancery Division.

April 29, 1952.

Harry M. Tonkin, Atlantic City, for plaintiff.

John Rauffenbart, Atlantic City, for defendants.

HANEMAN, J.S.C.

Plaintiff herein seeks a prohibitory and mandatory injunction directing the defendants Joseph and Carolyn Abate to desist from continuing with the construction of an addition to their mansion house, which is to be used for a private garage and outdoor living room, and to remove the same to a distance of at least 40 feet from the property line of Union Avenue, Margate City, New Jersey. The facts herein, as garnered from the stipulation and admissions in the pleadings, are as follows:

By deed dated January 19, 1910, Howard G. Harris and Ida M. Harris, his wife, transferred and conveyed unto Margate Company, a corporation of the State of New Jersey, a tract of land then and ever since known as 'Margate Park.' The said tract of land was plotted and divided into 78 blocks or partial blocks of lands, being all lands lying between the Atlantic Ocean on the south and Beach Thoroughfare on the north, bounding upon the following streets, to wit: Mansfield, Nassau, Osborne, Pembroke, Quincy, Rumson, Summer, Thurlow, Union and Vendome Avenues. In and by said deed last mentioned, which was recorded in the office of the Clerk of Atlantic County at Mays Landing, New Jersey, on January 21, 1910, the said Howard G. Harris and his wife imposed upon said lands therein described certain restrictive covenants. These covenants, as far as here pertinent, read as follows:

'Under and Subject to the following covenants and conditions (hereafter to be designated as 'Improvement Restrictions') which are hereby made a part of the consideration of this conveyance and are accepted herewith by the party of the second part.

'1. On the premises hereby demised * * * no building or part thereof shall be used or erected except for any one or more of the following purposes * * * (d) as a private detached dwelling house. * * * (f) one private motor garage and one private stable may be erected on each lot as shown on said plan; provided however that if any such building is constructed as a detached building it shall not cost less than $300. and provided further that no portion of any such garage or stable shall be within 40 feet of the front property line of said lot.'

In interpreting restrictive covenants it must be borne in mind that courts of equity do not aid one man to restrict another in the use to which he may lawfully put his property, unless the right to such aid is clear. Fortesque v. Carroll, 76 N.J.Eq. 583, 75 A. 923 (E. & A. 1909); Howland v. Andrus, 81 N.J.Eq. 175, 86 A. 391 (E. & A. 1912); Frisch v. Rutgers Village, 8 N.J.Super. 392, 73 A.2d 83 (Ch.Div.1950).

The defendants are the owners of adjoining parcels of land within the area mentioned and described in the said deed from Howard G. Harris and wife to Margate Company, and derive their respective titles by mesne intervening conveyances from said Margate Company. The defendants lots are located on the north side of Atlantic Avenue, extending from the westerly line of Thurlow Avenue to the easterly line of Union Avenue. Located thereon is a two-story private detached dwelling.

The defendants have recently built an addition to this mansion house originally erected on said lots, extending southwestwardly from the southwesterly side of said house toward Union Avenue, consisting of a utility room and a kitchen, and have continued the foundation of said utility room and kitchen for a distance of 51 feet southwestwardly toward Union Avenue. It is upon this foundation that the defendants propose to build a brick garage and outdoor living room or recreation room, at a cost in excess of $300. The entrance to said garage, facing Union Avenue, is set back 20 4 from the property line on Union Avenue. The northerly said of said proposed outdoor living room and garage is 3 2 southwardly from the northerly property line of said defendants' lots, which property line is the southerly line of plaintiff's lot. The southerly side line of said outdoor living room and garage is 37 from the northerly line of the Atlantic Avenue street line.

The outdoor living room and garage are to be built of the same exterior materials as the main dwelling house. The roofs of the same are to be a...