Goldmann, Smalley and Schettino. The opinion of the court was delivered by Goldmann, S.j.a.d.
[26 NJSuper Page 254] James V. Padula, now deceased, was the owner of a large tract of vacant land in the Ivy Hill Park section of Newark, New Jersey, consisting of about 32 acres. On March 22, 1951 his executors, the defendants Padula, conveyed a one-acre parcel out of this tract to defendant-respondent Garden Construction Co. On December 11, 1952 the City of Newark filed its complaint seeking to "enjoin, set aside and invalidate" that conveyance because the parcel formed part of a subdivision as defined in R.S. 40:55-1, as amended, the subdivision had not been approved
as required by R.S. 40:55-15, as amended, and hence the conveyance was invalid as to the municipality.
The Padulas answered admitting the allegations of the complaint. The answer revealed that there was an action pending in the Chancery Division by which the Padulas sought a reconveyance of the one-acre parcel because the transfer was the result of "coercion, duress and threats."
The defendant company moved to dismiss the complaint on the following grounds: (1) it failed to state a claim upon which relief could be granted; (2) R.S. 40:55-15, as amended, insofar as it was here sought to be applied, was unconstitutional in that it contravened (a) the Fourteenth Amendment to the Federal Constitution, because it constituted a deprivation of property without due process of law, (b) Article I, Section 10 of the Federal Constitution, because it impaired the obligation of contract, and (c) Article I, paragraph I of the State Constitution, because it deprived defendant company of due process of law and also impaired the obligation of its contract; and (3) the complaint failed to join indispensable parties defendant. (The last reference is to five corporate grantees to whom the Padulas had conveyed parcels of varying size subsequent to the Garden Construction Co. transfer, as well as to two mortgagees of these lands.) The Chancery Division granted the company's motion and dismissed the complaint as to it. The city appeals.
It may be observed preliminarily that the complaint is defective in several particulars. It fails to allege the appointment of a planning board by the governing body of the City of Newark (R.S. 40:55-3); there is nothing in the complaint from which it might be concluded that a master plan was prepared and adopted by the planning board (R.S. 40:55-6); nor is there any allegation that the governing body at any time authorized the municipal planning board to adopt regulations governing the subdivision of lands (N.J.S.A. 40:55-12). Borough of Oakland v. Roth , 25 N.J. Super. 32, 35-36 (Ch. Div. 1953). The deficiencies could have been cured by amendment, but none of the defendants questioned the complaint in any of these particulars
in the court below or here. We might properly affirm the dismissal without considering the points raised by counsel (City of Rahway v. Raritan Homes, Inc. , 21 N.J. Super. 541, 543 (App. Div. 1952)), but we choose to dispose of the appeal on the merits.
It is undisputed that the one-acre plot was sold and the deed delivered without the subdivision of the original 32-acre tract having first been approved either by the Planning Board of the City of Newark -- we assume the existence of such board for the purposes of this opinion -- or the governing body itself. It is also undisputed that the planning board did not waive the requirements of its approval of the subdivision, nor did the governing body.
The statute in effect on the date of the delivery of the deed, March 22, 1951, was L. 1950, c. 67, § 8, effective April 25, 1950, amending R.S. 40:55-15 as it had theretofore been amended by L. 1948, c. 464, § 6:
"Any owner or agent of any owner of any land who transfers or sells any land which forms a part of a subdivision as defined in this Title, before a plat thereof has been approved by the approving agency, whether the planning board or governing body and duly recorded or filed in the office of the county clerk or register of deeds, shall forfeit and pay a penalty of not less than one hundred dollars ($100.00) for each lot or parcel so transferred or sold, * * *.
The municipality may enjoin the transfer or sale or agreement by action for injunction brought in any court of equity jurisdiction and may recover the penalty by a civil action in any court of competent jurisdiction; provided, however , that the provisions of this section shall not apply in any case in which the planning board shall have waived the filing of a map pursuant to this section."
Thus, the only consequences flowing from non-compliance with the statute were: (1) imposition of a minimum penalty of $100 against the transferring owner or his agent, and (2) the enjoining by the municipality of the transfer, sale, or agreement of sale. Clearly, the object of the injunctive remedy was to arrest the transfer before it became an accomplished fact. Nothing in the statute as it read at the time of the deed in ...