Gaulkin, Labrecque and Brown. The opinion of the court was delivered by Labrecque, J.A.D.
Plaintiff Renee Cleaners, Inc. (Renee), appeals from the entry of summary judgment in favor of defendants Good Deal Super Markets of N.J., Inc. (Good Deal), Ivy Hill Stores, Inc. (Ivy Hill) and Rickarjef, Inc. (Rickarjef), and from denial of summary judgment in its favor.
Ivy Hill and Rickarjef are wholly owned subsidiaries of Good Deal. On April 18, 1959 Ivy Hill leased to plaintiff store #1 in the Irvington Avenue Shopping Center, Maplewood, New Jersey, for a period of ten years. The lease covers 36 pages in the appendix, contains 57 paragraphs -- a number
with subparagraphs -- and has annexed to it a schedule containing an additional 13 paragraphs. It provided, among other things, that:
"The Tenant shall use and occupy the store premises for no purpose other than as a retail store for the on premises dry cleaning and pressing of clothes, fur storage and blazing, finished laundry service, and for no other purpose without the express written consent of the Lessor."
"51. The Landlord shall not lease any other stores in the group of stores of which the demised premises are a part to any Tenant for the operation of a dry cleaning and pressing store, including tailoring, finished shirts and finished laundry. In addition the Landlord or any person, firm or corporation, directly or indirectly controlled by Landlord will not lease to such a store within 500' of the premises.' (Emphasis added)
The leased premises were located on what might be called parcel A. In addition, Rickarjef was the owner of parcel B, adjoining. Defendants have stipulated that they were all included in the aforementioned reference to the "Landlord or any person, firm or corporation, directly or indirectly controlled by the Landlord," and that if Rickarjef still owned parcel B, the leasing of any portion thereof within 500 feet of plaintiff's store would have come within the interdiction of the quoted paragraph.
Subsequent to the execution of the lease and plaintiff's entry into possession, defendants Rickarjef and Good Deal sold parcel B to a corporation known as W.M.S. Co. Two months later Ivy Hill and Good Deal sold the premises upon which plaintiff's store was located to Avon Enterprises, which assumed the obligations of the lease only insofar as they related to that specific parcel.
Thereafter W.M.S. Co. entered into a lease with a competing automatic dry cleaning business known as Norge Villa, covering premises located in parcel B which, plaintiff asserts, are within 500 feet of its store.
Plaintiff thereupon instituted the present suit against Ivy Hill, Good Deal, Rickarjef and W.M.S. Co. The count against W.M.S. Co. was later dismissed when it was made to appear that it had had no knowledge of the terms of the lease between Renee and Ivy Hill. The sole issue remaining in the case was plaintiff's right to damages from defendants for violation of the covenant referred to. The trial judge held that the covenant had not been breached by the sale of the premises to W.M.S. Co. See Renee Cleaners, Inc. v. Good Deal, etc., N.J., 83 N.J. Super. 85 (Ch. Div. 1964).
Another provision of the lease, paragraph 39, provided that:
"39. The conditions, covenants and agreements in the aforesaid lease contained, to be kept and performed by the parties hereto shall be binding upon and inure to the benefit of said respective parties, their legal representatives, successors and assigns. This clause shall not be construed to permit any assignment or subletting, without Landlord's consent. The term 'Landlord' as used in this Lease means the owner of the building of which the demised premises form a part, so that in the event of any sale of said building or in the event of a lease of said building, the said Landlord shall be and hereby is entirely freed and relieved of all covenants and obligations of Landlord hereunder and it shall be deemed and construed without further agreement between the parties or their successors in interest, or between the parties and the purchaser, at any such sale or the said leasing of the building, that the purchaser or lessee of the building has assumed and agreed to carry out any and all covenants and ...