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Wilzig v. Sisselman

Decided: March 3, 1986.

NAOMI WILZIG, ET AL., PLAINTIFFS,
v.
SELIG J. SISSELMAN, INDIVIDUALLY, AND AS EXECUTOR OF THE ESTATE OF H. JEROME SISSELMAN, DECEASED, ET AL., DEFENDANTS. SELIG J. SISSELMAN, ET AL., PLAINTIFFS, V. ALEXANDER M. GOLDFINGER, JR., ET AL., DEFENDANTS. NAOMI WILZIG, SIGGI B. WILZIG AND SONIA DONNENBERG, PLAINTIFFS-RESPONDENTS, V. SELIG J. SISSELMAN AND J.D. CONSTRUCTION COMPANY, DEFENDANTS-APPELLANTS



On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County.

Michels, Gaulkin and Stern. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

Defendants J.D. Construction Company and Selig J. Sisselman appeal from a judgment of the Chancery Division that declared null and void a contract, dated August 25, 1983, pursuant to which Sisselman Israel Associates was to sell to J.D. Construction Company, for $12,600,000, approximately 180 acres of land situated in the Borough of East Rutherford, New Jersey which was under the jurisdiction of and administered by the Hackensack Meadowlands Development Commission.

This appeal arises against a complex background of protracted litigation involving members of the family of the late H. Jerome Sisselman. The initial complaint captioned Naomi Wilzig, et al. v. Selig J. Sisselman, individually and as Executor of the Estate of H. Jerome Sisselman, deceased, et al. (C-1444-80) was filed in the Superior Court of New Jersey on December 29, 1980. This multi-count complaint, filed by various Sisselman family members, involved numerous legal disputes relating to the Estate of H. Jerome Sisselman. In part, the complaint dealt with a tract of land, known as the "Railroad Property", which consisted of approximately 180 acres located in the Borough of East Rutherford, New Jersey. This property constituted a significant portion of the site of the proposed Berry's Creek Center located in the Hackensack Meadowlands. Prior to his death, H. Jerome Sisselman had transferred title to this land to Sisselman Israel Associates, a family partnership. This tract constituted the partnership's main asset. See Wilzig v. Sisselman, 182 N.J. Super. 519, 523 (App.Div.1982).

On August 25, 1983, defendants Selig J. Sisselman and his cousin, Martin L. Sisselman, as managing partners of Sisselman

Israel Associates, entered into a contract to sell the 180 acre parcel of land to J.D. Construction Company. Thereafter, other partnership members sought and obtained an order to show cause, with temporary restraints, enjoining Selig J. Sisselman and J.D. Construction Company from implementing or taking any action relative to the August 25, 1983 agreement. Specifically, Selig J. Sisselman was to show cause why an order should not be issued: (1) permanently enjoining him from implementing the August 25, 1983 agreement; (2) enforcing an agreement for the preparation and implementation of plans for the development of the Berry's Creek Center, dated May 23, 1983; (3) enforcing a settlement agreement entered into by members of the Sisselman family, dated April 16, 1983; and (4) declaring the latter two agreements valid and binding on all the parties. This action, which was captioned Selig J. Sisselman, et al. v. Alexander M. Goldfinger, Jr., et al. (C-2057-80), was consolidated with the aforementioned action in the Superior Court.

Thereafter, plaintiffs Naomi Wilzig, Siggi B. Wilzig and Sonia Donnenberg instituted another action against defendants Selig J. Sisselman and J.D. Construction Company. In this action, captioned Naomi Wilzig, et al. v. Selig J. Sisselman (C-3837-83E), plaintiffs sought, in part, a rescission of the agreement of August 25, 1983 between J.D. Construction Company and Sisselman Israel Associates or, alternatively, a declaration that the agreement was null and void and a permanent injunction against defendants J.D. Construction Company and Selig J. Sisselman preventing implementation of the agreement. J.D. Construction Company, in addition to filing an answer to the complaint and a crossclaim, filed a third-party complaint against Martin L. Sisselman and Sisselman Israel Associates. In this complaint, J.D. Construction Company sought specific performance of the August 25, 1983 agreement, on the ground that it had entered into the agreement relying upon certain representations made by Selig J. Sisselman and Martin L. Sisselman. On motion, the trial court determined that specific performance was not a remedy available to J.D. Construction

Company with respect to its agreement of August 25, 1983 with Sisselman Israel Associates.*fn1

Thereafter, following a lengthy bench trial, the trial court declared that the agreement of August 25, 1983 was null and void because: (1) Selig J. Sisselman and Martin L. Sisselman did not have actual or apparent authority to enter into an agreement on behalf of Sisselman Israel Associates; (2) the Sisselman Israel Associates' property, which was the subject of the August 25, 1983 agreement, was in custodia legis and, therefore, could not be sold without prior court approval; and (3) the August 25, 1983 agreement was executory in nature and had been disavowed by the court-appointed receiver. The trial court thereupon entered judgment in favor of plaintiffs Naomi Wilzig, Siggi B. Wilzig and Sonia Donnenberg and third-party defendant, Sisselman Israel Associates (then in receivership) and against defendants J.D. Construction Company and Selig J. Sisselman. This appeal followed.

We are satisfied from our study of the record and the arguments presented that the judgment of the trial court was based on findings of fact that were adequately supported by the evidence and that all of the issues of law raised are clearly without merit. R. 2:11-3(e)(1)(A) and (E). Contrary to defendants' claim, there is substantial credible evidence in the record, as a whole, reasonably to warrant the trial court's conclusions that: (1) the Sisselman Israel Associates property here involved was in custodia legis when the agreement with J.D. Construction Company was executed on August 25, 1983; (2) Selig J. Sisselman and Martin L. Sisselman did not have actual or apparent authority to execute the agreement for the sale of the

property on behalf of Sisselman Israel Associates; and (3) James E. Wheat, Liquidator-Receiver of Sisselman Israel Associates, had the authority and power to disavow the August 25, 1983 agreement and he, in fact, did disavow this agreement. See Leimgruber v. Claridge Associates Ltd., 73 N.J. 450, 455-456 (1977) (findings of trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence); Rova Farms Resort v. Investors Insurance Co., 65 N.J. 474, 483-484 (1974); State v. Johnson, 42 N.J. 146, 161-162 (1964). ...


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