Conford, Freund and Sullivan. The opinion of the court was delivered by Freund, J.A.D. Conford, S.j.a.d. (dissenting).
Plaintiff appeals from the reopening of a default judgment against defendant Realty Construction Co., from the dismissal of his action for the recovery of possession of lands and for mesne profits under N.J.S. 2A:35-1 and 35-2 after his opening statement to the jury, and from a denial of his motion for a new trial.
Plaintiff was the owner of a strip of property some 200 feet long and a varying width of between 8 and 23 feet, located at the northwest corner of Chestnut Street and the Garden State Parkway Marginal Road in East Orange. The property adjoins a driveway which forms a portion of apartment house premises owned by defendant Realty Construction Co.
On October 9, 1961 plaintiff commenced an action to recover possession of this strip of land and damages for mesne profits. Defendants failed to answer within the time prescribed,
and on November 3, 1961 plaintiff secured an order for judgment for the possession of the premises and for damages against defendant Realty Construction Co. in the sum of $750, with costs. (The cause was discontinued as against defendants Leonard Englebrook, superintendent of Realty's apartment house, and his wife.) This default judgment was vacated on December 11, 1961, and Realty (hereinafter defendant) was granted leave to file an answer, which it did.
The pretrial order states plaintiff's cause of action as follows:
"The plaintiff claims that the defendant has used and occupied his premises, ever since he owned same, in the following ways:
1. It has caused automobiles to be parked thereon.
2. It has caused its ash and refuse cans to be placed in front of said premises.
3. It has caused snow to be shoveled from its driveway on to said premises.
4. It has trimmed down a large tree and cut the grass and generally has landscaped the plaintiff's premises and made and maintained the plaintiff's premises to appear part of the defendant's premises and its landscaping, and has incorporated plaintiff's premises into its own, and in order to enhance the value of its own premises and the rental value and rentability of the many apartments therein."
Defendant contended that it had never deprived plaintiff of possession of any part of the premises in question. It admitted that plaintiff owned this land, and charged, in effect, that he allowed the foliage on his property to grow uncontrolled as a spite measure against it because it refused to purchase this property at the ...