Michels, Morgan and Milmed. The opinion of the court was delivered by Michels, P.J.A.D. Morgan, J.A.D. (dissenting).
Plaintiffs appeal from a judgment dismissing their complaint against defendant Robert D. Stearns entered by the trial judge at the close of all of the evidence. Plaintiffs had entered into a contract with defendant Cabana Pools, Inc. (Cabana), pursuant to which Cabana was to furnish the necessary materials and labor for the installation of a swimming pool on plaintiffs' property in the Borough of Hopatcong, New Jersey. The contract provided that plaintiffs were to be responsible for the pool location within their property lines. However, defendant S. Tom Freda, a/k/a Thomas Freda, an officer of Cabana, informed plaintiffs during negotiations that he would take care of everything. Freda looked at the property, measured it and advised plaintiffs that everything would be fine. However, Freda apparently did not inform plaintiffs of the necessity of obtaining building permits in order to install the pool. Plaintiffs signed the contract and executed a promissory note which was assigned by Cabana to New Jersey Mortgage and Investment Corp.
Shortly after the contract was signed Cabana applied to the borough for the necessary building and zoning permits on behalf of plaintiffs. Stearns, who was also president of his own pool company, was employed part-time by Cabana and other companies to obtain these permits. He completed and signed the applications for the permits filed with the
borough. In each application he stated that the lot size of the property on which the pool was to be installed was 100 feet wide in the front and rear and 150 feet deep. He also stated that the pool would be erected 50 feet from the front line, 10 feet plus from the rear line, 15 feet from the left side line, and 5 feet plus from the right side line. Each application was signed by Stearns. The application for the building permit contained the following certification:
I, Robert D. Stearns interested as Agent residing at 89 Sand Rd Fairfield NJ will superintend the construction of the within said building, and having the proper authority from the owner to apply for this permit, and make this application, say: That the statements made in this application are true, and the proposed work will be done in accordance with the ordinances of the Borough of Hopatcong.
And the application for the zoning permit contained the following certification:
I, Robert Stearns interested as Agent Residing at 89 Sand Rd Fairfield, NJ having proper authority from the owner to apply for this permit and make this application say: That the statements made in this application are true.
On the basis of the truth and accuracy of the statements set forth in these applications the borough issued the zoning and building permits and Cabana constructed the pool on plaintiffs' property.
The measurements set forth in both applications and certified by Stearns to be true were not truthful and were grossly inaccurate. The property was only 46 feet wide in the front and rear and only 100 feet deep. In addition, Stearns did not "superintend the construction" of the pool. As a result the pool was installed in violation of the sideline requirements of the borough's zoning ordinance. Plaintiffs were therefore compelled to remove the pool at their own expense. They instituted this action against Cabana, Freda and Stearns to recover the damage they sustained as a result of alleged fraud, misrepresentation and negligence
of each defendant. Freda settled with plaintiffs prior to trial. At the close of all of the evidence the trial court directed a verdict in favor of plaintiffs against Cabana, which had defaulted, and granted Stearns' motion for judgment, holding that Stearns did not owe any duty to plaintiffs and that the representations made by Stearns in the applications for the building and zoning permits were not relied upon by plaintiffs. We disagree.
We are satisfied that in the light of the circumstances Stearns had a duty to exercise reasonable care in the preparation and filing of the applications for the building and zoning permits. As Justice ...