For the plaintiff-appellant, Nicholas S. Schloeder.
For the defendant-respondent, Harrison & Reinhardt (Julian C. Harrison).
The opinion of the court was delivered by
CASE, J. The appeal is from a judgment of nonsuit entered in the Bergen County Circuit Court at the close of plaintiff's case. On March 21st, 1936, plaintiff and defendant entered into an agreement in writing whereby the defendant undertook to sell and the plaintiff undertook to purchase certain real estate in the Village of Ridgewood. The agreement contained these provisions:
"The Seller will convey to the Purchaser by Deed of Bargain and Sale free from all encumbrance except as hereinafter mentioned, on or before the fifteenth day of April, Nineteen Hundred and Thirty Six, all that certain lot * * *. * * *
"This contract is entered into upon the knowledge of the parties as to the value of the land and whatever buildings are upon the same, and not on any representations made as to character or quality. * * *
"It is understood and agreed * * * that the buildings comply with municipal ordinances and regulations and the provisions of the New Jersey State Tenement House Act as enforced by the State Board of Tenement House Supervision, to be shown by the report of the department or board enforcing the same where such ordinances, regulations and said act apply. * * *
"The premises above described are sold subject to zoning ordinances and restrictions of record, if any. * * *
"All sums paid on account of this contract, and the reasonable expense of the examination of the title to said premises are hereby made liens thereon, but such liens shall not continue after default by the purchaser under this contract."
Title was closed on April 4th, 1936; a bargain and sale deed was given, accepted and recorded. The following facts were stipulated at the trial:
"It is stipulated that the property in question is located in a one-family residence zone in the Village of Ridgewood; that in 1931 Lannuier, the then owner, obtained from the Ridgewood Board of Adjustment an exception permitting occupancy by two families, and altered the building for that purpose; that the defendant bank acquired the property by deed from Lannuier in February, 1935, after foreclosure proceedings had been instituted on a mortgage for $10,000 held by the bank; that there were then three families occupying the premises, and such occupancy continued up to April, 1936, when the plaintiff purchased it, and thereafter until the 30th of June, 1941, when the top floor was vacated after proceedings had been commenced by the Tenement House Department against plaintiff.
"It is stipulated that the provisions of the Zoning Ordinance in Ridgewood did not permit three-family occupancy of this building at any of the times ...