Scuorzo v. Infantino

• Decision Date: 27 May 1929
• Parties: SCUORZO v. INFANTINO et al.
• Court: New Jersey Court of Chancery

146 A. 326

SCUORZO

v. INFANTINO et al.

Court of Chancery of New Jersey.

May 27, 1929.

(Syllabus by the Court.)

Suit by Carrie Scuorzo against Salvatore Infantino and others. Bill dismissed.

Cantillo & Scuorzo, of Newark, for complainant.

Pallitta & Pallitta and Ralph A. Villani, all of Newark, for defendant Salvatore Infantino.

BERRY, Vice Chancellor. The complainant and the defendant Infantino own adjoining properties on Jefferson street in the city of Newark. The complainant acquired her property from one Gaetano Iuliano by deed dated May 29, 1925, and recorded June 8, 1925. The defendant acquired his property by sheriff's deed dated May 4, 1926, and recorded June 15, 1926. The sheriff's deed conveyed the land therein described, subject to an easement agreement between the complainant and her brother, Dr. Belott, the former owner of the defendant's property. At the date of the sheriff's deed, the north wall of the two-story brick building on the lot thereby conveyed encroached upon the lands subject to the easement the full length of the building, varying from 24 of a foot to 29 of a foot. Also a garage on the rear of the lot encroached on the lands owned by the complainant in fee from one and three-quarters to two and one-quarter inches. The defendant built the house and garage in 1925 for Dr. Belott at the location fixed by Dr. Belott and his architect. The sheriff's deed was made pursuant to a sale under an execution on a mechanics' lien judgment obtained by the defendant. The bill seeks a mandatory injunction to compel the defendant to remove the encroachments complained of, and complainant thus seeks to enforce her rights in a manner not attainable by legal procedure. Both the existence of an easement and the encroachment thereon, as well as the encroachment of the garage at the rear of the complainant's premises, are admitted. No suit at law to establish these facts is therefore necessary. Union Trust Co. v. Goerke (N. J. Ch.) 142 A. 562. That this court has jurisdiction over this cause and that a mandatory injunction might issue under proper circumstances is indicated by Hirschberg v. Flusser, 87 N. J. Eq. 588, 101 A. 191; Krich v. Zemel, 96 N. J. Eq. 208, 124 A. 449; Capone v. Ranzulli, 99 N. J. Eq. 627, 134 A. 553; and Union Trust Co. v. Goerke, supra.

When the complainant and her brother, Dr. Belott, acquired title to their respective lots, they were both subject to the easement of a drive 8 or 8% feet wide, one-half of which was on each of the respective lots. When Dr. Belott began the construction of his building, he discovered that he did not have sufficient land for his purposes, and a written agreement was entered into between him and the complainant whereby the width of said driveway was reduced to 7 feet, and the complainant conveyed and released to Dr. Belott a strip of land 1% feet in width and 77.15 feet in length along the southerly side of said driveway extending from the street toward the rear of the lot, in consideration of which Dr. Belott conveyed to the complainant a strip of land 2 feet wide and 20 feet in depth at the rear of his lot, thus making the complainant's lot 2 feet wider on the rear and the defendant's lot 1 foot 6 inches wider in front.

This agreement was executed on August 12, 1925, and recorded August 19, 1925. At the time of its execution, the defendant had already begun his construction work under his contract with Dr. Belott, and claims that the foundation of the offending wall had already been laid. The complainant claims that, while the excavation for the foundation walls had been completed and the foundation for the walls on the other three sides of the building had been laid, nothing had been done toward the erection of the north wall at this time. I am inclined to believe that all the foundation walls were erected at the same time. There was no reason, so far as the contractor was concerned, for delaying the construction of any one wall beyond the time of the construction of the others. The defendant had no knowledge of the negotiations between the complainant and her brother. In these negotiations and all transactions connected with this matter, the complainant was represented by her husband, who is a member...