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Yanow v. Seven Oaks Park Inc.

Decided: July 20, 1951.


On motions for summary judgment and on motion for intervention.

Stein, J.s.c.


Plaintiffs' amended complaint presents the following factual situation: On May 20, 1948, the defendant Seven Oaks Park, Inc., acquired by purchase four tracts of land in the City of Orange. Those tracts were contiguous to one another and the purchasing company laid them out into building lots shown on a map entitled "Map of Seven Oaks Park North, located at Orange, New Jersey, etc." The company filed the map in the Essex County Register's Office. On lot 9 in block "C," shown on that map, is situate a large three-story brick mansion house formerly occupied by the Colgate family and used only as a one-family residence.

In July of 1948, Seven Oaks Park, Inc., leased the Colgate mansion house to the East Orange General Hospital. The curtilage upon which the house stands is of considerable size, having a frontage on South Center Street of about 358 feet. The lease was for one year and the sanctioned use was for a nurses' training school and residence and for other hospital purposes. The premises were intended to furnish to the hospital a temporary nurses' home until a permanent nurses' home could be built elsewhere. The latter event happened and the mansion house was vacated in June of 1950.

The complaint charges that Seven Oaks Park, Inc., was entirely owned and controlled by the defendants Max Masin

(its president) and Morris Tzeses (its secretary) and that these persons, together with the defendant Leo Tzeses, constituted all of the company's stockholders, directors and officers. Plaintiffs further allege that in order to induce persons to purchase lots and dwellings from the tract aforementioned the defendants Max Masin and Morris Tzeses, acting in behalf of the selling company, falsely and fraudulently represented to such prospective purchasers that the entire tract shown on the map of Seven Oaks Park North, including the curtilage upon which stands the Colgate mansion house, would be used only for one-family residences and that the mansion house itself would soon be torn down because it was too large and too old to be used as a one-family residence. It is alleged that those representations were made in behalf of the owning company, that the officers making them knew them to be false, and that the representations were believed and relied upon by the purchasers, amongst whom are the four plaintiffs herein.

It is further charged that in October of 1950 the owning company conveyed substantially all the premises shown on the map (including the Colgate piece) to the individual defendants Seymour Masin, Leo Masin, Leo Tzeses, Arthur Tzeses and Milton Albert, but that said conveyance was taken by the grantees with full knowledge of the aforementioned representations, that on November 1, 1950, those grantees entered into an agreement to sell the Colgate property to the intervening defendant, Eastern Christian Institute, and that the Institute has announced and advertised that it intends to convert and use the structure as a classroom and dormitory for its student body.

The amended complaint further charges that the intended use of the Colgate house constitutes a violation of subsection 9 of section 2 of the building zone ordinance of the City of Orange, New Jersey, which prohibits the operation and conduct of a private school in the area where the Colgate house is situated (being the area in which the plaintiffs' properties are located) unless such use be with the written consent of

80 per cent (by frontage) of the owners of all lots within 200 feet of the property. It is further alleged that no such consent has been obtained.

The plaintiffs claim that not only does the proposed use of the Colgate property as a school and dormitory violate the zoning ordinance of the City of Orange but also violates a restrictive general scheme or plan resulting from the alleged representations that all the property shown on the map would be used only for one-family dwellings. Plaintiffs seek a restraint against the defendants from using or permitting the use of the Colgate house for any purpose other than that of a one-family residence and from erecting or permitting the erection anywhere on the whole tract of any buildings other than one-family residences. They further ask that the judgment restrict the use of all the lots shown on the map to one-family residences and, further, that the defendants be compelled to tear down the Colgate house.

The defendants other than the Institute have by their answers presented various defenses, amongst which are that the alleged restrictive scheme or plan is unenforceable and void because not being in writing it is within the statute of frauds, that conveyances have been made to bona fide purchasers without notice of the alleged representations, and that the occupancy and intended use of the Colgate ...

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