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Brower v. Glen Wild Lake Co.

Decided: January 27, 1965.

ROGER E. BROWER AND ALICIA L. BROWER, PLAINTIFFS-APPELLANTS,
v.
GLEN WILD LAKE COMPANY, A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT



Conford, Kilkenny and Lewis. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

After a plenary trial of plaintiffs' declaratory judgment action, the Chancery Division entered a judgment adverse to plaintiffs' contentions, except as to the issue of estoppel which the trial court found to be not ripe for decision. Plaintiffs appeal from the adverse judgment and from the failure of the trial court to determine the issue of estoppel.

The opinion of Judge Herbert is reported in 77 N.J. Super. 577 (Ch. Div. 1962). Essentially for the reasons expressed therein, we are in accord with the determinations that

plaintiffs are not entitled to a perpetual renewal of the lease entered into on December 15, 1936 by defendant Glen Wild Lake Company, as lessor, and plaintiff Roger E. Brower, as lessee; are not entitled to a reformation of the lease as written to provide for such a right of perpetual renewal; and the provision for rental on the basis of "foot lot frontage" refers to lake frontage and not road frontage. While that opinion adequately disposes of those issues, what follows will serve as a supplement thereto and will also dispose of the question of estoppel, which was left unresolved and which both sides would like to have answered.

For simplicity of reference, the following is the provision in the 20-year lease of December 15, 1936, upon which plaintiffs base their claim to a right of perpetual renewal of the lease:

"5. The right to renew this lease for a further term of ten years. Said renewal to be on a basis of not over 3 per Foot Lot Frontage in all other respects upon the same terms and conditions as herein set forth, provided that notice of such renewal be given to the party of the first part at least three months before the expiration of the term thereof, and provided further that the rental agreed upon shall be paid in advance before the beginning of such renewal term."

The first sentence in the above provision speaks only of a right to renew "for a further term of ten years." The singularity of that renewal term is evidenced by the punctuation mark, the period, which completes the expression of the right. That a single renewal was intended is further demonstrated by the reiteration of the nature of the grant in the succeeding separate sentence of the paragraph, wherein reference is made only to the singular noun, "Said renewal," or "such renewal," or "such renewal term." Nowhere in the provision is there any allusion to the plural, such as "renewals" or "renewal terms."

As to plaintiffs' contention that the words, "upon the same terms and conditions," imply that the renewal lease will in turn contain a right of renewal ad infinitum, that claim is contrary to the now established rule. 31 A.L.R. 2 d 620

(1953). In Hyde v. Skinner, 2 P. Wms. 196, 197, 24 Eng. Rep. 697 (1723), Lord Chancellor Macclesfield summed up the rule as follows:

"And though the lease is to be made on the same covenants, yet that shall not take in a covenant for the renewing this new lease, forasmuch as ...


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