Krich v. Zemel

• Decision Date: 09 May 1924
• Docket Number: No. 53/262.,53/262.
• Citation: 124 A. 449
• Parties: KRICH v. ZEMEL et al.
• Court: New Jersey Court of Chancery

124 A. 449

KRICH

v. ZEMEL et al.

No. 53/262.

Court of Chancery of New Jersey.

May 9, 1924.

Suit by Harry Krich against Meyer Zemel and others. Decree for complainant.

Stein, Stein & Hannoch, of Newark, for complainant.

Benjamin M. Weinberg, of Newark, for defendants.

CHURCH, V. C. This is a bill filed by the complainant against the defendants for mandatory injunction, restraining the defendants from using the complainant's westerly wall as their easterly wall, and from continuing to permit the roof beams and walls of said building to encroach upon complainant's property.

This matter has been in the courts for some time, and was carried from the First district court of Newark to the New Jersey Supreme Court and thence to the Court of Errors and Appeals. This court, speaking through Mr. Justice Minturn, 1 N. J. Adv. Rep. 1502, 122 Atl. 739, has stated the facts in regard to the matter very fully, and I quote Mr. Justice Minturn's opinion, which clearly sets forth the facts.

"One Meyer had title to the lot with the building thereon [now property of complainant]. Adjoining his lot on the west [now property of defendants], upon the premises No. 304 Market street, existed some indefinable structures which the brief denominates 'shacks,' the property of Samuel R. and William A. Baker. Meyer contracted with the Bakers on April 22, 1912, for the construction of a theater building on their lot No 304 Market street, and in the agreement conceded to the Bakers the right to use the westerly wall upon No. 306 Market street, 'as long as the building about to be erected was in existence,' and 'as long as said building should stand on said property, of the said lastmentioned (Bakers) persons.' The agreement having been duly recorded, the proposed structure was erected, and the parties entered into possession in accordance with the provisions of the agreement.

"The erection of the building required the extension of the roof beams into the walls of the existing building on No. 306 Market street, to a depth of about six inches, and to a height of about eight inches, upon a base of concrete, which formed a solid slab running across and used as the roof and ceiling for the new structure, thus practically creating one structure of the two adjoining buildings. In effectuating this agreement and prosecuting the work thereunder, the parties had unfortunately overlooked the rights of an existing mortgagee, and hence the present controversy.

"Prior to the execution of the agreement, and on June 25, 1907, the premises No. 306 Market street had been mortgaged to Rachel A. Cartright, whose executrix in January, 1917, filed a bill to foreclose the mortgage, naming inter alia as defendants the two Bakers and their wives, for the purpose of eliminating the easement in question. In due course a sheriff's sale was had, and the property No. 306 Market street was purchased by this plaintiff. [Property was not purchased at the sale by complainant but by complainant's predecessor in title.] Thereafter the defendants purchased the property No. 304 Market street, and then the trouble began. The plaintiff insisted upon the removal of the roof beams from the wall, and, the defendants failing to accommodate him in that respect, this suit was instituted to establish his unqualified rights in the locus in quo. The trial court found these facts substantially as stated, and the Supreme Court affirmed the judgment, holding that 'the right to continue the beams in the plaintiff's building was cut off by the foreclosure of the mortgage, and the beams remaining constitute a trespass.'

"The substantial question presented is whether the defendants, under the agreement and...