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Bituminous Concrete Co. v. Manzo Contracting Co.

Decided: November 2, 1961.


Goldmann, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D.


Defendant appeals from an order of the Chancery Division adjudging it in contempt of a restraint previously issued by that court; a fine of $50 was imposed. By consent the matter was heard on affidavits.

On October 15, 1960 Bituminous purchased an asphalt plant from the Kenman Corporation. On the same date Kenman by letter leased to Bituminous "the right to use the grounds and roads where the plant is located, * * * for the period from October 15, 1960 to December 31, 1961 * * * jointly with the undersigned and other tenants or occupants of the premises, * * *" and agreed "to sign a lease, * * * setting forth the above terms and conditions." Subsequently, at the request of a prospective

purchaser of the property, Kenman tendered to Bituminous a lease in writing. Prior to the execution of this lease Kenman notified plaintiff that it had entered into a contract of sale with Manzo, by which the latter agreed to purchase its entire tract of land consisting of seven and one-half acres, with full knowledge of plaintiff's leasehold rights therein. Plaintiff and defendant are both in the asphalt business.

On December 1, 1960 plaintiff instituted an action in the Chancery Division in which it alleged the foregoing facts and charged that Manzo in violation of plaintiff's leasehold rights had undertaken the excavation of a roadway ramp, and had thereby rendered the roadway unusable for plaintiff's business operation. Plaintiff demanded as relief that defendant be enjoined from excavating or obstructing the roadway and from interfering with plaintiff's right of possession under its lease. On the same date plaintiff obtained, ex parte , an order directing the defendant to show cause on December 9, 1960 why a preliminary restraint should not be entered pending a final hearing. This order also provided for an interim restraint. On December 8, 1960 the parties exchanged affidavits. Michael Manzo deposed that although the roadway had been "partly obstructed" due to the excavation, it "has been cleared away." Michael J. Stavola, plaintiff's president, in his affidavit alleged additional acts of interference by defendant with plaintiff's property rights. These were incorporated in an amended complaint which was filed on December 15, 1960, and have no direct bearing on the present dispute. However, a supplemental affidavit of Stavola, dated December 15, 1960, contained the allegations that:

"* * * deponent visited the area in dispute on Saturday, December 10, 1960, at approximately 12:30 o'clock, in the company of my attorney, and remained on the premises for approximately three-quarters of an hour, during which time a bulldozer, bearing the legend of Manzo Contracting Co., Inc., in the presence of the President, Michael Manzo, was continuing to bulldoze the most

northeasterly roadway, as delineated on Diagramatic Map 'A', pushing the dirt in a southeasterly direction toward the rear of said roadway."

and that:

"At the same time [December 10, 1960] a bulldozer of the defendant was pushing dirt along the northeasterly roadway and pushing the same in an easterly direction toward the turn of said road at the rear of the property. Inquiry was made of Michael Manzo as to what the bulldozer was doing excavating the roadway and he replied that they were improving the roadway and were going to lay asphalt on it."

The order to show cause, including the interim restraint, was continued from December 9 until December 13 and then until January 6, 1961.

On December 21, 1960 plaintiff obtained an order to show cause why the defendant should not be held in contempt for violation of the interim restraint, returnable December 23, 1960. On that date the parties appeared and following colloquy between counsel and the judge the contempt proceeding was adjourned to January 6, 1961.

The petition upon which the order to show cause was issued on December 21 set forth as the facts constituting the contempt, that:

"The defendant continued operating its portable asphalt plant and in so doing tapped in and connected to equipment owned by the plaintiff and, in the course of its operation, the defendant's employees passed to and fro underneath the equipment of the plaintiff, a pipe line crossed above land and underneath plaintiff's equipment and in ...

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