For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None.
This case involves the ownership of a prefabricated building, machinery, equipment and inventories. Defendant (the two corporate defendants may be treated as one) conveyed the lands to plaintiff, reserving the right to remove those items, but defendant did not remove them within the stipulated time. The trial court found for defendant. The Appellate Division reversed, and we granted defendant's petition for certification. 57 N.J. 140 (1970).
The controversy has a lengthy history. Defendant owned real property in the Township of Woodbridge upon which it conducted an industrial operation. The lands were later zoned for residential use, defendant's operation thereupon becoming non-conforming. Somehow building permits were issued for the erection of additional industrial buildings and structures although variances were not sought. Plaintiff sued to enjoin the zoning violations, and a consent judgment was entered on December 13, 1961 which called for the removal of those additional buildings and structures within three years from that date.
Defendant later sought relief from that judgment. The further proceedings initiated by defendant resulted in the entry of an amended judgment dated June 11, 1965, superseding the earlier one. The present case turns upon the meaning of the 1965 judgment.
The 1965 judgment in substance embodied an agreement rather than a judicial determination of a controversy. The evident aim was to terminate the industrial operation completely, including the nonconforming use which could lawfully have been continued. To that end defendant agreed to convey the lands, then worth about $30,000, to the plaintiff Township without the payment of any dollar consideration. In exchange defendant was given permission "to operate all their existing facilities on the aforesaid lands and premises until June 30, 1967." The judgment continued:
"3. Upon said date, namely, June 30, 1967, all manufacturing operations shall terminate with respect to all structures on defendants' lands and premises;
4. Upon termination of manufacturing as aforesaid, defendants shall be permitted a reasonable time, not to exceed six months, within which to dismantle and remove whatever buildings, machinery, equipment, inventories, or other property they desire from the premises;
5. That upon completion of said dismantling and removal of defendants' property, defendants shall vacate said premises and surrender possession thereof to the plaintiff; that upon surrendering of possession as aforesaid, plaintiff shall assume the task, responsibility and cost of demolition and removal of any structures as it sees fit, and defendants shall have no responsibility or liability in connection therewith;
7. That contemporaneously with the entry of the within Amended Judgment, defendants will execute and deliver to plaintiff a bargain and sale deed conveying all of their right, title and interest in the subject premises to the plaintiff. Said deed will reserve to the grantor the exclusive right to possession and control of the premises in accordance with the terms and conditions of this Amended Judgment."
Jurisdiction was retained "in order that any party may apply on motion for further directions or relief at the foot of this judgment."
Defendant delivered the deed as required by paragraph 7 of the amended judgment, reciting ...