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Serafin v. Wolff

Decided: November 17, 1949.

MARTIN SERAFIN, PLAINTIFF-RESPONDENT,
v.
GEORGE WOLFF, DEFENDANT-APPELLANT, AND EMMA WOLFF, HIS WIFE, DEFENDANT



McGeehan, Colie and Eastwood. The opinion of the court was delivered by McGeehan, S.j.a.d.

Mcgeehan

A judgment of $350 in favor of the plaintiff and against the defendant George Wolff was entered in the Passaic County District Court after trial before the judge sitting without a jury. The defendant George Wolff appeals.

In February, 1939, the defendants were tenants of a one-family house in Paterson, New Jersey, which at the time was heated by a coal furnace. The tenants sought permission of the then owner to install an oil burner unit in the existing furnace and to install a storage tank for oil outside the cellar. This permission was granted by the then owner, Realty & Security Company, in the following letter dated November 3, 1939:

"Dear Mrs. Wolff:

"We understand that you are about to install an oil burner in our house which you now occupy on a rental basis. In view of the fact that you are paying for this outfit and we are not contributing any money toward its purchase, we hereby state the installation is your property and you may take it out on vacating our premises.

"It is, however, understood that you will again put the present furnace in the same usable condition as it is now."

The authority of the signer of the letter to bind the corporate owner was admitted. Pursuant to the permission granted, the defendants installed the oil burner and the storage tank. They used both in connection with their occupancy of the premises until the summer of 1946, when the defendant George Wolff removed both and put the coal furnace into usable condition. On October 31, 1946, the defendants moved out of the premises. Title to the premises passed by mesne conveyances to the present plaintiff on April 18, 1946.

In February, 1946, before the plaintiff bought the property, he called at the premises and spoke to the defendant Emma Wolff and made some inspection of the property. Plaintiff testified that he did not inquire of the defendants what rights, if any, they had in the premises, and that no mention was made to him of any claim on the part of the defendants to the oil burner and storage tank, or of the arrangement made with the prior owner in 1939 for removal thereof. The defendant Emma Wolff testified that she informed the plaintiff that the oil burner belonged to her, and there was some corroboration of her testimony by a former roomer with defendants.

Plaintiff's suit was to recover the value of the oil burner unit and storage tank removed from the property. The appellant argues (1) that the plaintiff was under a duty to inquire of the defendants the rights under which they held, and if he fails to inquire, he is chargeable with notice of such facts as the inquiry would have revealed if it had been made, and (2) that the finding of the court below that the plaintiff had no actual notice of the tenants' title to the oil burner and storage tank was contrary to the weight of the evidence.

Since the evidence as to actual notice to the plaintiff was in conflict and the finding of the trial judge is supported by substantial evidence, we see no justification for disturbing it. State v. Richardson , 4 N.J. Super. 503 (App. Div. 1949). Assuming then, as we must, that there was no actual notice of the tenants' claimed right to remove the oil burner and storage tank, the remaining question is whether the plaintiff-owner is charged with constructive notice.

The question whether one other than the owner may remove property affixed to the freehold arises in various settings, and its determination often depends on the particular circumstances of the case, such as the relationship of the parties involved, the type of property affixed, the type of property to which it is affixed, the degree of affixing, whether or not affixed under an agreement with the owner as to the rights thereto ...


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