Benjamin R. Fox Co. v. Atlantic City

123 A. 708, 99 N.J.L. 420, 1924 N.J. LEXIS 148

• Court: Supreme Court of New Jersey
• Decided: March 3, 1924
• Status: Published

Opinion

The opinion of the court was delivered .by

Mintujin, J.

Benjamin R. Pox held title to a tract o-f land consisting of fifty feet on Grammercy place, and extending four hundred and seventy-five feet to Madison avenue in Atlantic City, and the city was in possession thereof, under an agreement of dedication by Pox. The latter had erected apartment houses on Main avenue, between Atlantic avenue and Grammercy place, and was engaged in erecting other houses between Grammercy place and Madison avenue. It was to bis interest to have an alley, which extended in the rear of the apartment houses, widened, and the city, through it representatives, arranged with Pox to enlarge the alley to a width of one hundred foot. The conferences between Pox and the city representatives resulted in a verbal agreement to the effect that St. Catharine’s place would be widened, provided Pox would dedicate to the city the fifty-foot strip of land on Main avenue first mentioned, in consideration of which the city would pave St. Catharine’s place and Main avenue, from Atlantic avenue to Madison avenue, with a gravel surface to its full width. Pox gave a deed to the city for nineteen feet along St. Catharine’s place, and also conveyed to the city, through the company plaintiff, the lands lying to the east of the westerly line of Main avenue aforesaid. As Fox’s apartment houses were nearing completion, and the city had neglected to pave Main avenue, a conference between him and the city’s representative took place, which resulted in ail agreement to the effect that since the city was not in funds to execute the promised work of pavement, that Fox would perform it at his own expense, and the city would later reimburse him. Main avenue was then paved by Fox at his own expense;, and although he frequently sought reimbursement, he never obtained it. Fox then attempted to vindicate his title to the fifty feet thus conveyed to the city by fencing off the locus in quo, and the city’s representative tore down the fance, and Fox then instituted this suit in ejectment. The question at issue obviously was whether there had been, by this series of acts upon the part of Fox, a dedication to the city of the locus in quo; and the jury found for the plaintiff, from which the city appeals.

The city’s contention, and it is the substantial question in the case, is that the trial court erred in refusing to direct a verdict for the city. Other questions involving trial procedure and rulings upon evidence are urged for reversal, but we observe no error in that regard prejudicial to defendant. The question as to the existence and extent of a dedication almost invariably turns upon the theory of the intent involved in the act of dedication, and as such resolves itself into a question of mixed law and fact for the jury to determine, excepting only in such instances as are presented in the cases of Clarke v. Elizabeth, 37 N. J. L. 120, and Camden v. McAndrews et al., 85 Id. 260, wherein it was held that the intent to dedicate was conclusively established. The case at bar is not comprehended in the latter class of cases, but is within the general rule declared in Wood v. Hurd, 34 Id. 87. Subject to a condition of this character, a dedication is valid and will he enforced. Perth Amboy Trust Co. v. Perth Amboy, 75 Id. 290; 16 C. J. 69, and cases cited.

The result is the judgment under review will be affirmed.

For affirmance — ^The.Oi-ianoellor, Chief Justice, Trenchard, Parker, Minturn,' Kalisch, Black, Katzenbach, Camp.bell, Gardner, Van Buskirk, Clark, JJ. 12.

,,For reversal — Hone.