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June 27, 1963

Sophie V. MULLER, Plaintiff,
Benjamin WEINSTEIN, Defendant

The opinion of the court was delivered by: WORTENDYKE

This action was instituted on June 1, 1962. The complaint is in four counts. The plaintiff seeks a judgment declaring that she is the equitable owner of certain lands and premises in the Village of Ridgewood, Bergen County, New Jersey, particularly described in the complaint. The legal title to the premises is concededly vested in the defendant; but plaintiff alleges that he holds the title in trust for her. She prays that he be required to reconvey the legal title to her; to give her possession of the premises; to assign to her any lease thereon; and to account to her for rents and profits derived by him from the property.

It is alleged in the first count (and these allegations are incorporated by reference in the succeeding counts), that the premises in question were conveyed by the plaintiff to the defendant at the latter's request, and without realization on her part that the effect of such conveyance was to transfer to the defendant the beneficial ownership of all of plaintiff's remaining real estate in New Jersey. She further claims that this conveyance was induced by the defendant's representations that the documents which she executed, effectuating and in connection with the conveyance, were necessary to enable the defendant to collect rents from the premises as they accrued and to remit the same to the plaintiff after collection. She charged that her execution of those documents was induced by his misrepresentations and false statements, upon which she relied. (As hereinafter indicated, she withdrew, at the pretrial conference, all charges that the defendant was guilty of any fraud or misrepresentation which induced her execution of the documents.)

 In her second count the plaintiff alleges that the defendant had been her agent with respect to the property conveyed, and that by reason of such agency a fiduciary obligation arose requiring the defendant to account to the plaintiff for the rents of the property. She charges that he violated that obligation by refusing to reconvey the property to her when she terminated his agency, and by his failure to account to her for the rents thereof. The third count alleges that her conveyance of the real estate to the defendant was without consideration, and has unjustly enriched him. The fourth count alleges that she was induced to convey the property by the dominance of the defendant, upon whom she relied for advice and assistance.

 Although she has withdrawn the charges of fraud, she still contends that she was not aware of the legal effect of the documents which she executed in November, 1947; that she did not realize, until shortly prior to the commencement of this action, that she had conveyed the legal title to the defendant; but believed she had merely entered into a contract of agency, or executed a power of attorney, for the purpose of enabling the defendant to manage the property in her absence, to collect the rents and to account to her therefor. She asks this Court, therefore, to require the defendant to reconvey to her the legal title to the premises, and to account to her for all rents which defendant has collected therefrom. She recognizes, however, her obligation to pay to the defendant reasonable compensation for the services which he has rendered to her in dealing with the property for her benefit; and she concedes the right of the present tenant to continue to enjoy possession of the premises under the existing lease thereof.

 The defendant, answering the complaint, admits that the plaintiff had been the sole owner of the premises described prior to her conveyance of the legal title thereto to him; and that a close friendship had existed between the parties for many years previously. He contends that he is under no obligation to reconvey the property to the plaintiff; claims that he has legal and equitable title thereto; and denies the agency status alleged in the complaint. As affirmative defenses, the answer pleads failure to state a claim upon which relief can be granted, estoppel, laches, and the statute of frauds. The defendant also counterclaimed against the plaintiff for damages alleged to have resulted from wilful and malicious acts and statements of the plaintiff which prevented him from consummating a sale of the property, which he had an opportunity to accomplish. On appropriate motion, at the close of all of the evidence, the Court dismissed this counterclaim, with prejudice, for insufficiency of proof.

 Shortly after the institution of the present action, Mrs. Muller instituted another action against the present tenant of the property. In that action Weinstein was joined as a third-party defendant. (C-696-62 Muller v. Ridgewood-Franklin Co. v. Weinstein). In the latter suit, Mrs. Muller prayed judgment that she be declared to be the lessor in the lease from Weinstein to Ridgewood-Franklin Co.; that the tenant be required to pay her the rents called for under that lease; and that it be enjoined from paying any of said rents to Weinstein. By this Court's order of September 24, 1962, Mrs. Muller and Benjamin Weinstein were required to interplead their respective claims to the fee of the demised lands, and to the rent due and to grow due therefrom, under Weinstein's lease to Ridgewood-Franklin Co.; Ridgewood-Franklin Co. was required to pay all such rents into the registry of the Court; and Mrs. Muller and Mr. Weinstein were temporarily enjoined from instituting or prosecuting any proceedings against Ridgewood-Franklin Co. based upon its lease from Weinstein. That action (C-692-62) was consolidated with the captioned action of Muller v. Weinstein. The determination of the Ridgewood-Franklin case is necessarily dependent upon my decision in the instant case.

 The pretrial conference in this case required two sessions. One was held on October 22, 1962, and the other on February 27, 1963. At the former, the plaintiff contended that the transfer of title to the defendant of the real estate in question in this case was 'a result of misrepresentations and false statements made by Weinstein.' At the pretrial conference session of February 27, 1963, the plaintiff contended that Weinstein became her trustee with respect to the lease entered into be Weinstein with Ridgewood-Franklin in September of 1952, covering lands described in the deed of November 12, 1947. While still asserting that she is the sole beneficial owner of the premises conveyed by the deeds of November 8 and 12, 1947, 'she expressly disclaims * * * any fraud on the part of or chargeable to the defendant; anything in the complaint to the contrary notwithstanding.' She conceded the genuineness of her signature on each of the documents which she is alleged to have executed in November, 1947, but she insists that she has no recollection of having executed them, and that she did not understand that the effect of the deeds was to vest title to the premises described therein in Weinstein. She testified that, at the time the documents were executed, she was about to enter a hospital for surgery, and that she merely intended to employ the defendant as her agent to collect the rents under the then existing lease. She further contended that, upon the termination of the so-called Arlaura lease, Weinstein's efforts to sell or relet the premises were performed as her agent, and that he became accountable to her for the rents from Arlaura, and subsequently from Ridgewood-Franklin, the succeeding lessee. She concedes that there was an hiatus between the termination of the Arlaura lease and the commencement of the term of the subsequent Ridgewood-Franklin lease, during which interval no rents accrued from the premises in question.

 Weinstein equates the November 1947 transactions with Mrs. Muller to a prepaid annuity arrangement, i.e., that the consideration for the conveyance of the premises and the assignment of the lease was his agreement that she should receive from him and from his heirs, for and during her lifetime, the sum of $ 1,000 per annum. He denies any undertaking or intention to act as her agent, whether in contemplation of compensation for his services or otherwise; and asserts that whatever services he may have rendered to her were induced by his feeling of good-will, which had developed during his long friendship with her and with each of her husbands during their respective lives, and in recognition of the many good deeds which she and each of her husbands had done for him. Weinstein denies that the transaction of November 8, 8, 1947 resulted from any influence, persuasion or other form of overreaching on his part. He testified that the documents reflecting the transaction were drawn by Michael A. Dwyer, Esq., an experienced, ethical member of the New Jersey Bar, acting as her attorney, and in compliance with her instructions, and that the documents were executed by her not only with adequate professional advice from Mr. Dwyer, but contrary to his (Dwyer's) recommendations. Weinstein claims that he has paid to Mrs. Muller, since November 8, 1947, a minimum of $ 1,000 per year, and in many instances in excess thereof, to an aggregate total exceeding $ 17,000.00.


 1. The plaintiff is a citizen of Florida; the defendant a citizen of New Jersey. She (the plaintiff) is a widow now 79 years of age, and he (the defendant) a bachelor 10 years younger.

 3. On August 1, 1941 plaintiff married John P. Muller, a widower, with whom she lived in Florida until his death, on April 18, 1947. During the period of her marriage to Mr. Muller, they remained on the same friendly terms with the defendant as had existed between the parties to the present action before her second marriage.

 4. In 1935, 1937 and 1941 plaintiff conveyed various parcels of New Jersey realty to the defendant, without monetary consideration, and for which she has never sought payment; and in 1944, with her husband, executed another conveyance which confirmed all previous deeds.

 5. Over the many years of the friendship between the parties, defendant performed numerous small services for the plaintiff, particularly relating to such properties as she then owned in New Jersey. He would, for example, drain the water pipes in her home in Ridgewood to prevent freezing during the winter, care for plants, arrange for fuel oil deliveries, and collect rent from tenants and transmit it to her. In 1944 the defendant telephoned to the plaintiff in Florida and asked her to come north to lease the restaurant property to Arlington C. Hall, whom he knew, and who was associated with Howard Johnson. Negotiations were accordingly entered into between Mr. Hall and Mr. and Mrs. Muller which culminated in a lease, signed on July 6, 1945, in the offices of Michael A. Dwyer, Esq. Mr. and Mrs. Muller were the lessors and Arlaura Realty Company, a corporation controlled by Mr. Hall, was the lessee. The lease provided for an annual rental of $ 1,000 plus payment of taxes by the lessee, and certain other requirements, including the construction by the lessee of a building on the property, to cost not less than $ 10,000 and to be erected by July 1, 1949, as well as the demolition of the restaurant structure then standing on the property. The lease also contained a covenant by the lessee not to use or suffer any person to use the premises for a gasoline service station.

 6. On October 1, 1945 Mr. and Mrs. Muller executed a joint will in which they named the defendant and one Bernard Lamb co-executors. By the terms of that will each testator devised the property of the first deceased to the survivor, and further provided that upon the death of the survivor, $ 1,000 of the remaining assets should be paid to Benjamin Weinstein (the present defendant) with the remainder to Mr. Muller's children by his previous marriage.

 7. On October 18, 1946, plaintiff sold her home in Ridgewood, New Jersey, with the aid of the defendant. She was represented in ...

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