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Efros v. Russo

Decided: January 29, 1962.

ARTHUR EFROS AND JULIE EFROS, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
MARY RUSSO AND JOSEPH RUSSO, HER HUSBAND, AND MAJO, INC., DEFENDANTS-RESPONDENTS



Price, Sullivan and Leonard. The opinion of the court was delivered by Price, S.j.a.d.

Price

[71 NJSuper Page 603] Plaintiffs sought a declaratory judgment in the Superior Court, Law Division, so construing a written lease between plaintiffs (lessees) and defendants (lessors) as to free plaintiffs from any obligation to pay a $4000 special assessment, levied against the leased premises

by the Township of Wall for a portion of the cost of a municipal water system, and to adjudge that defendants were obligated to make such payment. The trial court denied the relief sought by plaintiffs and granted defendants' cross-motion for summary judgment, which judgment was, in part, as follows:

"It is * * * adjudged and declared that under a true construction of the lease dated April 2, 1956, by and between the plaintiffs, Arthur Efros and Julie Efros, his wife, and the defendants, Mary Russo and Joseph Russo, her husband, and Majo, Inc., the plaintiffs are obligated to pay the special water assessment for benefits levied against the leased premises and presently a lien thereon together with all unpaid interest on said assessments and all future assessments levied against the leased premises, * * *."

The trial court's opinion, on which the aforesaid judgment was based, is reported in 68 N.J. Super. 110 (Law Div. 1961). The court's action was based on the pleadings and affidavits submitted by the parties.

There is no factual dispute. On April 2, 1956 plaintiffs leased from defendants an unimproved tract of land in the aforesaid township for an annual rent of $3000. The written lease, prepared by defendants' attorney, was for a period of 52 years, with an option by which plaintiffs might renew the lease for a further period of 23 years. The lease contained the following covenants:

"The said party of the second part [plaintiffs-lessees], in addition to the above rent, covenant to pay all taxes on the said premises during the term of this lease and any renewal or renewals thereof.

And at the expiration of the said term, or the termination of this lease, the said Tenant will quit and surrender the premises hereby demised, in as good a state and condition as reasonable use and wear thereof will permit, damages by the elements excepted." (Emphasis supplied)

On April 26, 1956 plaintiffs leased the aforesaid property to Great Atlantic & Pacific Tea Company, Inc. (hereinafter A. & P.) for a term of ten years, with renewal options

for three additional successive periods of five years each. The lease was to "commence on the first day of the month next succeeding the completion and acceptance" of a building and parking lot, which, by the terms of the lease-agreement, plaintiffs were obligated to erect for A. & P. Such building was erected at a cost "in excess of $150,000.00." The annual rental was $22,800. The lease-agreement contained the following provision:

"That the said lessor [plaintiffs] shall pay all taxes, assessments and other charges imposed upon the premises hereby demised."

By an "Agreed Statement in Lieu of Record" (R.R. 1:6-2) it appears that the aforesaid municipal water system was installed in 1959 and that such system had an ...


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