New Jersey Highway Authority v. Renner, A--140

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtJACOBS
Citation18 N.J. 485,114 A.2d 555
PartiesNEW JERSEY HIGHWAY AUTHORITY, Plaintiff-Appellant, v. Mary RENNER, Defendant-Respondent.
Docket NumberNo. A--140,A--140
Decision Date31 May 1955

Page 485

18 N.J. 485
114 A.2d 555
Mary RENNER, Defendant-Respondent.
No. A--140.
Supreme Court of New Jersey.
Argued May 2, 1955.
Decided May 31, 1955.

Page 487

[114 A.2d 556] Morris M. Schnitzer, Trenton, for appellant.

Wallace P. Berkowitz, Jersey City, for respondent.

Page 488

The opinion of the court was delivered by


The Chancery Division granted plaintiff's claim for specific performance of the defendant's agreement to convey premises in Woodbridge and denied the defendant's counterclaim for the alleged wrongful act of the plaintiff in delaying or preventing her removal of the building located thereon and then demolishing it. The defendant appealed to the Appellate Division contending that there was error in the dismissal of her counterclaim and that she was entitled to a jury trial on the issue which it raised. This contention was sustained in an opinion by Judge Clapp reported in 32 N.J.Super. 197, 108 A.2d 107 (App.Div.1954), and the counterclaim was remanded for trial. We granted certification under R.R. 1:10--2. See 17 N.J. 226, 111 A.2d 117 (1955).

Since 1952 the plaintiff has been engaged in building the Garden State Parkway. See Town of Bloomfield v. New Jersey Highway Authority, 18 N.J. 237, 113 A.2d 658 (1955). In 1953 it determined that the defendant's property in Woodbridge would be required for the Parkway and it negotiated with the defendant for its purchase. On March 21, 1953 a contract was entered into between the plaintiff and the defendant which provided that the property would be conveyed for the sum of $17,500; the contract stated that the defendant could remove the building on the property on or before April 1, 1953. The building was never removed by the defendant but was demolished by the plaintiff's contractor on May 27, 1953 and the land was actually occupied by the plaintiff and used for Parkway purposes. On May 19, 1953 the plaintiff instituted an action in the Law Division demanding judgment for possession and specific performance, preliminary injunctive relief, and Mesne damages. This action was dismissed by a stipulation dated June 4, 1953. The plaintiff contends that the stipulation was signed pursuant to an agreement between counsel that the defendant would perform the contract and the parties would 'exchange general releases'; the defendant contends that no one had authority to enter into such agreement on her behalf and general releases were never executed.

Page 489

On September 24, 1953 the plaintiff instituted its action in the Chancery Division which demanded that the defendant be required to perform specifically her agreement of March 21, 1953 and that she pay damages in the sum of $10,000 plus costs. She filed answer and counterclaim which indicated that she was willing to deliver a deed for the premises provided the plaintiff would reimburse her for 'consequential damages to her property'; her claim (apart from matters which have been abandoned) rested generally upon the [114 A.2d 557] assertion that the plaintiff had 'interfered with and placed obstacles' to the removal of the building to her substantial damage. Her story was substantially as follows: In March, 1953 she asked Mr. Adamowicz, a house mover, for an estimate of the cost of removing her building to a new site which had been selected tentatively; he inspected the building and surroundings and told her the removal would cost $6,500. Thereafter she signed the contract of March 21, 1953 with the plaintiff. At about that time the plaintiff dug an enormous moat or ditch in the rear of the building and in the path of the contemplated movement of the building; the porch on the building was 'knocked off in order that the line of the moat may be made straight.' When Mr. Adamowicz saw the moat he told the defendant that because of it he could not abide by his original estimate of $6,500 and that it would cost an additional $10,000 ($16,500 in all) for the moving of the building. Although the defendant made efforts to obtain other house movers she was unable to make satisfactory arrangements in time and the building (which was of substantial value to her) was partially dismantled and then demolished by the plaintiff without compensation for her damages.

The defendant contends and the Appellate Division found that the Chancery Division's determination that the plaintiff was entitled to specific performance of the March 21 agreement did not dispose of her counterclaim which must await trial by jury. The pretrial order set forth that there were equitable as well as legal issues involved and that 'all equitable issues arising out of the complaint, the defense and counterclaim

Page 490

will be tried by the court; all law issues will be tried by a jury.' Both parties agreed 'to permit the jury trial to be had in Mercer County where the equity case will be tried.' On its own case the plaintiff simply introduced the March 21 agreement and called the defendant as its witness to testify with respect to her refusal or failure to execute a deed to the premises. The defendant then called her witnesses; they were Mr. Sladkus, attorney for the defendant in the negotiations which resulted in the March 21 agreement, the defendant Mary Renner and her daughter Marianne Renner. Their testimony included references to the digging of the moat and its effect on the contemplated moving of the building; Mr. Slackus also testified that although the agreement provided...

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