For the prosecutor, George I. Marcus.
For the City of Hackensack, Chandless, Weller & Kramer,
For Fred N. Munroe, no appearance.
For Hackensack Village, Inc., Mehler & Mehler.
BODINE, J. (At chambers under the statute.) The prosecutor purchased from the City of Hackensack a large tract of land for the purpose of developing it into a high grade residence district. The property was bounded by the Esplanade, Passaic Street, Maple Hill Drive and Central Avenue. The total purchase price was $151,000. The contract provides for the erection of one-family houses which will in the aggregate cost $2,000,000.
The contract of purchase restricted the use of the lots to one-family dwellings, the restrictions to run with the land. On the other side of Central Avenue, the city owned lots designated as lots from 30 to 37, inclusive, in Block 346.
The prosecutor made a written offer to purchase these lots upon the same terms which had been exacted by the city when he purchased the lots first referred to. These latter lots were advertised for sale at public auction and the prosecutor was
not the high bidder. They were struck off and sold to one Fred N. Munroe, who assigned to Hackensack Village, Inc.
The difficulty seems to be that after many attempts to have the restrictions contained in the sale of these lots waived the city council passed a resolution so doing, and the writ was allowed to review that action.
It is conceded that the sales in both instances were pursuant to R.S. 40:60-26. The statute in question permits a governing body to impose conditions and restrictions on the use to be made of lands owned by it to the same extent as any other vendor of real estate may do.
The city relies upon chapter 33, Pamph. L. 1943, p. 69, in support of the action complained of. This statute expressly provides that the city may waive or modify any covenant or condition imposed by the municipality in the sale of land provided, however, that the right shall not be ...