Hughes, Price and Coolahan. The opinion of the court was delivered by Price, J.s.c. (temporarily assigned).
By this appeal defendant-appellant, Hudson Circle Service Center, Inc., a corporation of New Jersey, owner of the property which was acquired by plaintiff by eminent domain by virtue of N.J.S.A. 27:1-1 et seq. , seeks to set aside a judgment in the Superior Court, Law Division, entered on the verdict of a jury on a trial de novo on appeal from the award of condemnation commissioners. The subject matter of the litigation had its origin in a complaint filed by plaintiff seeking the appointment of commissioners to determine the compensation to be paid for the taking of the land and premises in question, including the damage, if any, to remaining property of defendant as the result of the taking. The property is located in the Town of Kearny, Hudson County, New Jersey. The award of the commissioners was $223,500. Both plaintiff and defendant appealed from the commissioners' award. A trial de novo was held and judgment entered on the verdict of the jury in the Superior Court in the sum of $168,200. This is the judgment which defendant seeks to set aside by reason of alleged errors of the trial judge in refusing to admit certain proffered testimony.
The land acquired involved two parcels, one of 1.279 acres and the other of 0.701 acres, respectively, out of a total area of approximately 20 acres owned by defendant.
Part of the premises acquired was leased to Jersey Truck Center, a partnership owned by brothers of one Myron G. Auerbach, an officer and stockholder of Hudson Circle Service Center, Inc., aforesaid. The lease was for 21 years from April 30, 1948, at a rental of $7,200 per annum, payable in equal monthly installments of $600. The lease
provided that the leased premises were "to be used and occupied for a gasoline and service station * * *." Paragraph 26 of the lease was as follows:
"Paragraph 26. It is understood and agreed between the parties hereto that the agreement executed by them dated April 30, 1948 regarding the purchase of gasoline for the said premises herein leased shall be made a part and parcel of this lease and shall be subject to all the terms, conditions and covenants hereunder."
As set forth in the appendix the attachment reads as follows:
"The parties hereto specifically agree that the rent and other charges reserved herein to be paid by the Tenant to the Landlord is essentially a consideration of and is predicated upon the due full, complete and faithful compliance by the Tenant of all the terms of the following clause:
In consideration of the execution of the within lease and in order to induce the Landlord to sublet the demised premises to the Tenant herein at the rent reserved herein to be paid by the Tenant, the Tenant does hereby covenant and agree that for and during the entire term of the 21 years from the date hereof, the said Tenant will not, nor permit anyone else to store, handle, sell, offer for sale, advertise for sale, use or permit to be used upon the demised premises, any part thereof or adjacent thereto, any gasoline, oil, petroleum products, automotive equipment, accessories, electrical equipment or any other merchandise of whatsoever nature, kind or description other than that supplied by Hudson Circle Service Center, Inc., of No. 51 Lexington Avenue, New York City.
It is further understood and agreed that the said Tenant shall purchase and acquire from the said Hudson Circle Service Center, Inc., all his requirements of gasoline, oil, petroleum products, automotive equipment, accessories, electrical equipment or any other merchandise of whatever kind, nature or description which is to be used, stored, handled, sold, offered for sale, advertised for sale upon the demised premises, or any part thereof, or adjacent thereto and that the said Tenant hereby agrees to pay unto the said Hudson Circle Service Center, Inc., for such gasoline (upon delivery) the 'posted tank wagon price' of the major owner or supplier of the brand of gasoline delivered as aforesaid at the time of such delivery, and for oil, petroleum products, automotive equipment, accessories, electrical equipment or any other merchandise of whatsoever kind, nature or description so purchased at the same price for which the major owner or supplier of that branded article sells the same products to similar service stations in the immediate vicinity of the within property. The said Tenant shall at no time, post or display or advertise at, in or about the said demised premises any other selling price of gasoline other than that fixed by the
said Hudson Circle Service Center, Inc., it being understood that the said Tenant will accept such brand of gasoline as the said Hudson Circle Service Center, Inc., shall designate, which brand said Hudson ...