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State v. Gorga

Decided: March 19, 1959.

STATE OF NEW JERSEY, BY THE STATE HIGHWAY COMMISSIONER, PLAINTIFF-RESPONDENT,
v.
FIORE GORGA AND GLORIA GORGA, DEFENDANTS-APPELLANTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.

Freund

[54 NJSuper Page 522] On January 27, 1956 the State Highway Commissioner filed a complaint under the Eminent

Domain Act, N.J.S.A. 20:1-1 et seq. , for the condemnation of 8,971 square feet of the defendants' 39,247 square feet of property in Fair Lawn. The State also acquired about 1,405 square feet of slope easement for the support of its new construction, conditionally subject to being reclaimed by the defendants. The matter was heard by condemnation commissioners who awarded the defendants $19,700. Both parties appealed from this award, and the case came on for trial in the Law Division. A struck jury rendered a verdict of $10,750. On defendants' appeal, we reversed and remanded for a new trial, principally because of the trial judge's exclusion of evidence of a zoning amendment subsequent to the date of the taking, rezoning the premises from residential to business use. See 45 N.J. Super. 417 (App. Div. 1957). Subject to clarifying observations, the order for a new trial was affirmed by the Supreme Court. 26 N.J. 113 (1958).

On the remand, a second struck jury in the Law Division rendered a unanimous verdict of $9,750. A judgment of $11,096.04, including interest from the date of entry, was entered. Defendants appeal therefrom and from the refusal of the trial court to grant a new trial. Although this appeal and the prior one both concern the proper valuation of the condemned lands, the appellate decisions following the earlier verdict in this case are not material to the issues raised on this appeal.

The property in question is located on the heavily-trafficked State Highway 4, nine miles from the George Washington Bridge. At the date of the taking, it was a triangular tract, zoned for residential use, with a frontage of 190 feet on Route 4. After the taking, Gorga was left with no frontage on the highway. The land generally was partly high and partly low. The State's position throughout these proceedings was that the land is an almost worthless swamp, unsuitable for business purposes, as attested by the fact that it remained vacant despite extensive development in the area. Defendants contended, however, that their land was acquired for business purposes in 1948, at which time

it was zoned for business, and that although it was zoned residential in 1954, there was a reasonable probability in 1956 that the Borough would rezone it for business. The Gorgas minimized the tract's topographical difficulties; they claimed that the high ground of the tract was suited for a building and that the low area could be used for a parking lot.

Dissatisfied with the second verdict of $9,750, defendants argue they are entitled to a reversal for four reasons: (1) the trial court so restricted their attempts to prove "comparable sales" that the award resulted in a taking of property without due process of law; (2) the trial court's instruction to the jury relating to "so-called experts in real estate" was prejudicial; (3) the court erred in refusing defendants' requests to charge that the jurors should consider the decrease in the dollar's purchasing power; and (4) the landowners were deprived of substantial justice.

The defendants' first point, that the trial judge erroneously restricted their attempts to prove comparable sales, is clearly without merit. Indeed, the claim is difficult to comprehend since defendants offered proof of the consideration involved in only two allegedly comparable sales. One was admitted and the other was not. Evidence of the consideration of certain other sales mentioned by their expert was not even proffered, much less excluded. New Jersey Highway Authority v. Johnson , 35 N.J. Super. 203, 214 (App. Div. 1955).

As to the one sale that the trial judge rejected as not comparable, it was over a half-mile away, in a level, heavily built up area, near a drive-in theater. No objection was made to the trial judge's ruling. R.R. 4:47. Moreover, in condemnation cases, it is well established that the trial judge has a broad, albeit not unlimited, discretion in ruling on whether certain lands which have been sold are or are not comparable to the subject property. Laing v. United New Jersey R.R. & C. Co. , 54 N.J.L. 576, 579 (E. & A. 1892); Brown v. New Jersey Shore Line R.R. Co. , 76 N.J.L. 795, 796 (E. & A. 1908); State by State Highway

Com'r. v. Burnett , 24 N.J. 280, 289 (1957); In re Port of New York Authority , 28 N.J. Super. 575, 581 (App. Div. 1953); New Jersey Highway Authority v. Johnson, supra , 35 N.J. Super. at page 214; New Jersey Highway Authority v. Rudd , 36 N.J. Super. 1, 3 (App. Div. 1955).

Even if we were to assume that the trial judge abused his discretion in making the determination of non-comparability as to the one sale, we cannot tell whether a contrary ruling would have altered the result since the defendants made no proffer of what the testimony would reveal the sale price to have been. R.R. 4:44-3. "To say that the revelation of the price * * * would have tended materially to influence the jury * * * ...


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