Josefowicz v. Porter

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: GOLDMANN
• Citation: Josefowicz v. Porter, 108 A.2d 865, 32 N.J.Super. 585 (N.J. Super. App. Div. 1954)
• Decision Date: 04 November 1954
• Docket Number: No. A--520,A--520
• Parties: Josef JOSEFOWICZ, Plaintiff-Appellant, v. William S. PORTER et al., Defendants-Respondents. . Appellate Division

Page 585

32 N.J.Super. 585

108 A.2d 865

Josef JOSEFOWICZ, Plaintiff-Appellant, v. William S. PORTER et al., Defendants-Respondents.

No. A--520.

Superior Court of New Jersey Appellate Division.

Argued Nov. 1, 1954.

Decided Nov. 4, 1954.

Irving I. Jacobs, Atlantic City, for appellant.

Isaac C. Ginsburg, Atlantic City, for respondent (Harry A. Gaines, Atlantic City, attorney).

Before Judges EASTWOOD, GOLDMANN and SCHETTINO.

The opinion of the court was delivered by

GOLDMANN, J.A.D.

Plaintiff appeals from a judgment of dismissal entered in the Atlantic County District Court in favor of defendants, and from the court's refusal to grant a new trial.

The parties entered into a contract on May 25, 1953 whereby defendants agreed to sell to plaintiff for $10,000 certain premises on Central Avenue, Lynwood, New Jersey, consisting of 4 1/2 acres of land on which were located a residence, five chicken houses and a barn, together with certain equipment used in raising chickens. Plaintiff made a down payment of $1,000. Subsequently, the parties ascertained that the Lynwood zoning ordinance prohibited the use or occupancy of these premises as a poultry and egg farm. Plaintiff demanded the return of his down payment, and being refused, brought suit in the district court. After a full hearing the trial court entered the judgment of dismissal here under appeal. Plaintiff's motion for a new trial was denied.

Although the testimony was taken down stenographically, none of it is set out in the appendix. Nor is the entire contract made available to us, except for those paragraphs giving the names of the parties, description of the property sold and selling price, and the paragraphs hereinafter quoted. We do not have before us such parts of the record as are essential to the proper consideration of the issues, R.R. 1:7--1(f), and are therefore seriously circumscribed in resolving such essential matters as intention of the parties, the present non-conforming use of the premises, and a construction of the contract read as a whole. However, defendant has made no motion to suppress plaintiff's brief and appendix or to dismiss the appeal for failure to comply with the rule. Nor has defendant supplied the deficiencies of which he presently complains. The appeal having been fully argued, we will proceed to dispose of it on the merits.

The agreement in question provided that:

'4. The title to be delivered shall be a marketable title and insurable by said title company and shall be free and clear of all encumbrances including municipal liens and assessments and liability for assessments for improvements now constructed (except as herein stated), this clause to be operative as of the date of this agreement, and the title is to be subject to all existing restrictions of record, the seller, however, guarantees that there are no restrictions in any conveyance or plans of record affecting the said premises, which will prohibit the use and/or occupancy thereof as dwelling and poultry and egg farm. * * *

'5. In the event that such title cannot be made by the Seller as above, and the Buyer is unwilling to accept such title as the Seller can make, then at Buyer's option, the above payment or payments shall be returned to the Buyer, together with the reasonable expenses of examining the title and making survey, or the Buyer may prosecute any legal or equitable action to which the Buyer may be entitled. * * *'

For lack of a complete appendix, we do not know whether the parties expressly bargained for the sale of the premises to be used presently for a poultry and egg farm. Such would appear to have been the purpose from a reading of the fourth paragraph of the agreement. And although we have no record to show that defendants were using the premises as a poultry and egg farm at the time the agreed was executed, counsel on the argument indicated that such was the case and that the use was a non-conforming use predating the passage of the ordinance, and therefore one that was continued and could in the future be continued under the ordinance.

The complaint filed in the district court clearly indicates that plaintiff was proceeding on the ground of defendants' misrepresentation as to the use to which the premises could in the future be put. Thus, the complaint sounded in rescission, an equitable action not cognizable in the district court. That court is a statutory tribunal upon which has been conferred jurisdiction over actions of a civil nature at law only. N.J.S. 2A:6--34, N.J.S.A. Admittedly, plaintiff was unable to prove legal fraud. The court nevertheless proceeded to consider the action as one for breach of contract--i.e., breach of the guarantee contained in paragraph 4 of the agreement, and this without formal amendment of the complaint. The case having been tried on the theory that it was one to recover damages in an amount not exceeding $1,000, we shall proceed to dispose of the appeal in that light.

A restriction imposed by legislative or municipal authority is not generally considered such an encumbrance as may...