This case comes before the court on the plaintiff's motion to strike the answer and counterclaim, and for summary judgment, the defendant's motion to dismiss the complaint, and the plaintiff's motion to dissolve the restraint heretofore entered on September 17, 1952. The complaint is in three paragraphs and is in the form prescribed by the rules of the New Jersey Supreme Court. (See "Appendix of Illustrative Forms, Civil Procedure," No. 19 "Complaint for Possession of Land.") The amended answer admits a lease between plaintiff and Champion Trading Company, Inc., on January 12, 1946, and denies the allegations of the complaint except for the description of the property. It sets up several defenses, among them an assignment to a third party of the lease, and several mesne assignments resulting in the final one to the defendant by which defendant alleges there exists a relationship of landlord and tenant between plaintiff and defendant. The defendant further states that he has performed all covenants and conditions under the provisions of the lease, and alleges waiver of breaches by the plaintiff resulting in an estoppel to plead said alleged breaches. Defendant denies that any taxes are due and states that there is on deposit with the plaintiff the sum of $13,200 as security for the faithful performance of all the terms and provisions of the lease, and finally defends stating (apparently) that acceptance of the September 1, 1952 rent by the plaintiff waived the breach by the defendant in his failure to pay the taxes.
Defendant counterclaims, setting forth in his first count, paragraph "Sixteenth" of the original lease, whereby
Champion Trading Co., Inc., hereinafter called "Champion," the lessee, was to have an option to purchase the premises in question, and in his second count setting forth a new agreement (after default in the original agreement) dated August 27, 1948, between the plaintiff and the lessee Champion, whereby paragraph "Sixteenth" was revised to eliminate the option to purchase and to insert a provision whereby, should a sale of the premises occur during the term of the lease, the lessee would share in the net sales price of the premises in excess of the amount of $77,517 to the extent of 20% of such excess.
On September 17, 1952 an order was obtained by the defendant requiring the plaintiff to show cause why she, her agents, representatives and attorney should not be restrained from proceeding with a sale of the premises to Koven & Brother, Inc., with whom she had a contract of sale for a price of $110,000. At the hearing on the return day the restraint was continued pending the decision on the motions.
The original lease, dated January 12, 1946, was between the plaintiff and Champion, and contained paragraph "Sixteenth" as substantially set out above. It also contained the following two paragraphs:
" Fifth: In addition to the rental hereinabove specified, the Tenant agrees and covenants * * *
(e) To pay the landlord any increase in taxes that may be assessed against the land and buildings after the first five years of this lease over the amount of $3,000.00 per year. * * *
Twenty-first: If default shall be made in any of the covenants herein contained, it shall be lawful for the landlord to reenter the premises and the same to have again, repossess, and enjoy."
The defendant alleges either in his answer and counterclaim or in his supporting affidavits an assignment on January 12, 1946 of the original lease to Freifeld and Ghertler, individually, trading as Fit-Rite Container Company, a subsequent assignment by Fit-Rite Container Company to Ashland Corrugated Paper Products, Inc. on July 27,
1948 (both antecedent to default on the original lease between plaintiff and Champion and to the new agreement between plaintiff and Champion of August 27, 1948), an assignment by Ashland Corrugated Paper Products, Inc. to Sol Freifeld, Leonard Ghertler, and Morris N. Freifeld on December 16, 1948, an assignment by Leonard Ghertler, Sol Freifeld and Morris N. Freifeld to ...