Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Auerbacher v. Smith

Decided: November 14, 1952.

EMILENE L. AUERBACHER, PLAINTIFF-APPELLANT,
v.
ALAN L. SMITH AND EMELIE B. SMITH, DEFENDANTS-RESPONDENTS



Eastwood, Goldmann and Francis. The opinion of the court was delivered by Goldmann, J.A.D.

Goldmann

Plaintiff brought an action in the Chancery Division seeking to restrain defendants from constructing any building on their premises designed for the practice of medicine, and from making any use of the premises for other than a one-family dwelling. The complaint alleged that the proposed construction and use would violate a restrictive covenant in defendants' chain of title. After a hearing the court entered judgment denying the injunction and dismissing the complaint, and plaintiff appeals.

The defendants, husband and wife, are owners of premises located at the northeast corner of Highland Avenue and Carteret Place, Orange, New Jersey. Plaintiff's premises adjoin immediately to the northeast, on Carteret Place. There is a single-family dwelling on each lot. Both lots are part of a larger corner tract acquired by one Frederick Pring in 1934. This lot, in turn, had been part of a large parcel purchased in 1870 by Margaret Westcott. In 1893 she conveyed the Pring tract to Agnes H. Putnam, subject to the following restriction:

"It is expressly understood and agreed that this conveyance is made and is accepted upon the express condition that no part of said premises or any house or structure erected or to be erected thereon shall be used or occupied for any business or trade whatsoever, nor for any other use than private dwellings and structures appurtenant to such dwellings and the parties of the first part covenant that a

restriction clause the same as that last above mentioned shall be inserted in all deeds hereafter executed by them on Essex Avenue or Highland Avenue aforesaid. And the party of the second part covenants that neither she nor her heirs, executors, administrators or assigns or any person deriving title to said premises through or under her or them shall use or occupy, or suffer to be used or occupied any part of said premises or any structure erected or to be erected thereon, contrary to said above condition and restriction." (Italics ours.)

At the time of this conveyance, Westcott owned certain properties fronting on Essex Avenue (now Carteret Place) and Highland Avenue. Westcott subsequently sold these properties to others, but none of the conveyances included the restriction imposed on Putnam and covenanted to be inserted in future deeds.

Putnam retained the corner lot purchased from Westcott until December 1898, when it was conveyed to one Winter by deed incorporating the above-quoted restriction except for the words "and the parties of the first part covenant that a restriction clause the same as that last above mentioned shall be inserted in all deeds hereafter executed by them conveying the property now owned by them on Essex Avenue or Highland Avenue, aforesaid." The entire parcel came into the hands of Frederick Pring after three mesne conveyances. In none of these deeds was the restriction spelled out, although two of them were "subject to restrictions of record."

Pring subdivided the corner parcel into four lots in 1934 when he sold plaintiff her present lot, the conveyance expressly being made subject to the covenants and restrictions as set forth in the deed from Westcott to Putnam. He then sold the second of the four lots in May 1935, the deed mentioning no restrictions. The third lot was conveyed to one Ruth Hulshizer in September 1935, "subject to restrictions of record which are not, however, reimposed." The fourth and final lot was sold two months later, the deed being silent as to restrictions. The Hulshizer lot eventually came into the ownership of defendant Alan L.

Smith in 1949, there having been two intervening conveyances, each made subject to existing restrictions of record, if any. Smith's deed contained the clause: "subject to restrictions of record and such facts as an accurate survey will reveal."

Smith is a medical doctor and desires to practice his profession from his home. Having decided to enlarge his dwelling for this purpose, he consulted an architect who then proceeded to draw up plans for a one-story, five-room addition designed for the reception and treatment of medical patients and having a separate entrance for such patients. These plans were submitted to plaintiff as a matter of courtesy. She immediately protested that for Dr. Smith to use his home for his medical practice would violate the restriction limiting defendants' use of their premises to that of a private dwelling. Smith nonetheless proceeded with his project. The plans were modified to comply with certain provisions of the zoning ordinance of the City of Orange, the city building inspector approved them, and the necessary building permit issued in due course. Plaintiff's protests having proved futile, this action ensued.

The Chancery Division judge (19 N.J. Super. 191 (Ch. Div. 1952)) stated the issue as being whether the practice of medicine by defendant "violates the restriction and is to be considered a business or trade." He concluded that "business or trade" cannot be held to include the practice of medicine, so that Smith's proposed use of the addition to his dwelling would not violate the restriction. He did not, however, consider the effect to be given the other words of the restrictive covenant, "nor for any other use than private dwellings." Reaching the conclusion he did, the judge appears to have found it unnecessary ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.