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Toth v. Vazquez

Decided: April 28, 1949.

JOHN TOTH, JR., AND VICTORIA TOTH, HIS WIFE, PLAINTIFFS,
v.
EDWARD VAZQUEZ ET AL., DEFENDANTS



Jayne, J.s.c.

Jayne

[3 NJSuper Page 381] Motions are made on behalf of the defendants John H. Coyne, executor of the estate of Peter

Coyne, deceased, Samuel Galinsky, and Arthur A. Wolpin to strike out the alleged causes of action against them respectively in that such allegations are insufficient in law. Since the motions are accompanied by affidavits, the motions will be regarded as applications for summary judgments. Rule 3:12-2.

Unless the allegations of mutual mistake or unilateral mistake proximately occasioned by the elements of misrepresentation are made evident, I am unable to perceive any cause of action for legal or equitable relief against the defendants Coyne and Galinsky.

The averments of mutual mistake and of material misrepresentations are not supported by the affidavit of the plaintiff. The defendant Galinsky is specific in his denials. Moreover he discloses that the plaintiffs did not rely upon any representation by him, but to the contrary caused a title search and a survey of the premises to be made. It is not evident that Galinsky was aware of any encumbrances or encroachments with respect to lot No. 13, and that he demonstrated the delineations of the property to the plaintiffs, as alleged but not now verified. The Galinsky deed of conveyance to the plaintiffs was one of bargain and sale, without covenants or warranties. Neither Coyne nor Galinsky have title to the strip of land in controversy, and a judgment of reformation of the conveyance would be vain and futile.

The alleged cause of action against the defendant Arthur A. Wolpin is contained in the amended second count of the plaintiff's complaint. Mr. Wolpin is an attorney and counsellor-at-law of this State who was engaged by the plaintiffs to examine the record title and to procure for them a survey of the premises preliminary to the consummation of the conveyance. It is charged that he is culpable in that he failed and neglected to obtain an accurate survey.

It will be expedient to quote the following paragraphs of Mr. Wolpin's affidavit:

"2. Prior to September 1, 1945, I was retained by the plaintiffs to make a title search of the premises known as Lot 13 on Block 12 of the Map of South Amboy, New Jersey.

"3. I carefully and diligently examined the record title of said premises and furnished the plaintiffs with an abstract of title certified by me to be a true copy of the record title as it existed in the Middlesex County Clerk's Office, the United States District Court, the New Jersey Supreme Court and the Tax Collectors Office of the City of South Amboy, New Jersey.

"4. I furnished plaintiffs with an accurate abstract of said title certified by me and expressly subject to such state of facts as an accurate survey would disclose.

"5. Acting for, and in behalf of, the plaintiffs I did obtain a survey from Morgan F. Larson, a duly licensed and practicing civil engineer and surveyor of the State of New Jersey.

"6. In selecting said Morgan F. Larson to survey said premises I did rely upon the excellent reputation for accuracy and professional skill as well as upon the high ...


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