Daniel J. Brennan, J.s.c.
This is a motion for summary judgment on the part of the plaintiff, in support of which application the movant relies on the affidavits annexed to the notice of motion and the original agreement between the contracting parties, Edward Gelb and Blue Front Market, dated December 26, 1950. By assignment dated April 16, 1951, Edward Gelb assigned to the instant plaintiff all of his rights against the defendant.
Plaintiff seeks the return of $10,000 which its assignor heretofore paid to the defendant, Blue Front Market, as a deposit, pursuant to the aforesaid agreement, and to the further sum of $300 toward the payment of fees expended for the examination of title.
The agreement, here the subject matter of consideration, relates to the sale of certain described real estate situated in the Township of Berkeley, Ocean County, New Jersey, and to the grocery, meat and produce business, as well as the business of the sale of alcoholic beverages conducted at said premises, including the retail plenary distributors license thereto.
The deposit paid was held in escrow by Herbert Fenster, as attorney for Blue Front Market, and by Edward Gaulkin, as the attorney for Edward Gelb. By order heretofore entered in this cause, these two named attorneys, having deposited with the clerk of this court the said sum of $10,000, were severally discharged from all liability in the premises, and the above entitled action, including the counterclaim as well as the complaint, dismissed as against them. The cause therefor thus proceeds with the Blue Front Market, as the sole defendant herein.
The agreement of December 26, 1950, consists of 14 typewritten sheets. The provisions thereof, considered pertinent and applicable to the instant motion, are as follows:
"1. The party of the first part does covenant and agree to and with the said party of the second part that the said party of the first part will well and sufficiently convey to the said party of the second part, by full covenant warranty deed, free and clear of all encumbrances , all those certain lots of land situated in the Township of Berkeley, County of Ocean and State of New Jersey, being Lots Numbered 36 and 38 on Central Avenue, and Lot Numbered 427, all as laid down on a map or plan of Lots of Seaside Park, duly filed in the Clerk's Office of said Ocean County, bounded and described as follows:
First Tract: Beginning at a stake for a corner at the intersection of the Easterly line of Central Avenue with the Northerly line of Fourth Avenue; thence in an Easterly direction, along the Northerly line of said Fourth Avenue, 100 feet to a corner; thence in a Northerly direction, parallel with Central Avenue, and bounding on the Westerly line of Lot Number 427, 100 feet to a corner, being also a corner of Lots Numbered 34 and 336; thence Westwardly parallel with said Fourth Avenue and bounding on said lot numbered 34, 100 feet to the Easterly line of said Central Avenue; thence Southerly course, bounding on said Easterly line of Central Avenue, 100 feet to the place of Beginning.
Second Tract: Situate on the Northerly side of Fourth Avenue at the distance of 100 feet Easterly from the East side of Central Avenue continuing in front of width on said Fourth Avenue 50 feet and extending in length or depth of the width Northward between parallel lines at right angles to said Fourth Street 100 feet to the rear line of Lot No. 326. * * *
It is understood and agreed that the buildings upon said premises are all within the boundary lines of the property as described in the deed therefor, and that there are no encroachments thereon and that the buildings comply with municipal ordinances and regulations and all State laws and regulations including the New Jersey State Labor Department, to be shown by the report of the department or board enforcing the same where such ordinances, regulations and said act apply. * * *
Subject to restrictions of record, provided however, that those restrictions do not make the title unmarketable and have not been breached, and permit ...