Price, Hall and Gaulkin. The opinion of the court was delivered by Price, S.j.a.d.
Plaintiff instituted this action in the Superior Court, Chancery Division, seeking to set aside a deed from it to defendant municipality on the ground that the conveyance had been executed under duress and the compulsion of economic necessity. In the alternative, it sought recovery for the reasonable value of the property involved. The trial court entered judgment on the merits in favor of defendants. Plaintiff appealed. Its principal contention is that the judgment was not in accordance with the evidence and that we should make new and independent findings pursuant to R.R. 4:53-1; R.R. 1:5-4 (b); R.R. 2:5. The deed in question is dated February 11, 1957. Plaintiff instituted the present suit June 11, 1957.
The record before us reveals that plaintiff, a developer, in October 1956 at a cost of approximately $400,000 acquired title to a large tract of land in Clifton, New Jersey. In November 1956 it applied to the planning board of that municipality for the approval of a subdivision plan to provide for 145 building plots. John A. Celentano, a stockholder of plaintiff and a member of the bar of this State since 1924, as well as magistrate of the City of Clifton, was a witness for plaintiff. He testified that at the aforesaid planning board meeting one of its members, Mr. Sweetman,
referring to a portion of the tract of land owned by plaintiff, said that the board "should insist that the developer donate the land for park purposes before they would approve the map"; that in December 1956 at a conference meeting with the members of the city council he answered in the negative an inquiry as to whether plaintiff would donate a tract to the city for park purposes; that he met again with the city council at a conference meeting on January 2, 1957 at which time reference was made by some of the councilmen to a suggestion of the city's planning consultant that the development should contain a small shopping area which would involve a change in part of plaintiff's property from residential zone to business zone; that some of the councilmen "voiced their opinions that if we would give the city some property for a park they would vote in favor of changing the zone." He testified: "This discussion went on for some time. We wanted to be paid for the tract that we were to give the City, because the change of zone was not our idea."
No official action was taken by the city to change the zone designation nor to make provision for a shopping area on the tract in question.
Under date of January 7, 1957 the city engineer wrote a letter to plaintiff's engineer outlining miscellaneous items including reference to plaintiff's storm sewers, drains and catch basins and added: "Deed should be submitted to the Planning Board for the plot to be used for park land prior to final approval."
Mr. Celentano further asserted that on January 11, 1957 he was present at a meeting of the planning board at which one of the members "requested a writing as to the 2-acre deal." The witness added: "He requested that we put this in writing before they would approve our plans, that we were going to give them the two acres. * * * I told them I was ready to give them the two acres as soon as they changed the zone."
He testified that further colloquy then ensued as to what had occurred at the prior council meeting, Celentano stating that "the agreement was that if they change the zone I
would give them the two acres." He further testified that at the last-mentioned planning board meeting he sought approval of plaintiff's plot plan; that they "told me without question they would not give me it unless I gave them the park property. * * * The meeting finally ended up that the plan was approved subject to us donating two acres of land, or whatever the acreage is."
The record further discloses that another meeting of the planning board was held February 8, 1957 at which, according to Mr. Celentano's testimony, he was told by the board's chairman that "the engineer would not sign the final map unless we gave them the land for park purposes"; that he then asked for a recess and conferred with Mr. Petruska, president of plaintiff, in an adjoining room, returned to the meeting room and told the planning board that "there was nothing else I could do but accede to their wishes because of the amount of money that was involved in this deal." He testified that he told his associate that "the cost would be so great it might be better to do what they want us to do and go to court later." Plaintiff on this appeal asserts that it decided to give the deed rather than to institute suit to compel the approval of the subdivision application because of the continuing expense of taxes, the loss of interest on the investment, and the fact that the economic loss which would flow from losing the mortgage commitments would exceed the value of the two acres in question. Celentano placed a value of $30,000 on the property as of the date of its transfer to the municipality, and asserted that its present value by reason of the development of Gregory Manor was $50,000 to $60,000. Various portions of Celentano's testimony were corroborated by plaintiff's engineer and by its president.
Evidence on behalf of defendants disclosed that many building permits had been issued for construction of dwelling houses in Gregory Manor commencing March 13, 1957 and continuing during the ensuing months. The court admitted in evidence a deed from plaintiff to Josephine Curreri dated June 6, 1957, which deed described the property by a lot
number on the map of Gregory Manor filed in the Passaic County Register's Office on April 18, 1957. The filed map was received in evidence at the trial and bore the legend "Final Plat, Subdivision Map of Gregory Manor Section No. 1 City of Clifton, County of Passaic, N.J." It was dated February 2, 1957. It listed plaintiff as the owner. The following statement thereon was signed by its aforesaid president Michael Petruska: "The undersigned as an officer in the corporation holding title to the hereon subdivided land hereby consents to the filing of this map." The written approval of the map by the planning board and by the city clerk was endorsed thereon under date of March 8, 1957, and the approval of the commissioner of the city thereon bore date April 9, 1957. The map designated the specific property here involved as "City of Clifton Park."
The evidence further disclosed that the deed from plaintiff to the City of Clifton was recorded February 13, 1957. Following the description of the property the following words appear in the deed: "For the uses and purposes of a public park to be maintained and operated by the City of Clifton."
The deed was signed by the aforesaid president of plaintiff and attested by its secretary, and contained the usual corporate acknowledgment stating its execution was pursuant to a resolution of its board of directors and expressing the voluntary nature of the act of the president in signing it.
The deed was prepared by Mr. Celentano. Following execution of the deed he caused it to be recorded and his law firm was charged with the fee therefor. The deed was returned to the firm February 20, 1957. It was then sent by the same law firm to the city. Approximately four months thereafter the present action, charging that the deed was delivered under duress, was instituted.
At the trial plaintiff's counsel elected to cross-examine William Holster, then acting city manager and engineer of the city, concerning matters which had not been covered on his direct-examination. Defendants' attorney objected and the trial ...