Shmidheiser v. States Avenue Construction Co.

121 A. 521, 94 N.J. Eq. 522, 9 Stock. 522, 1923 N.J. LEXIS 693

• Court: Supreme Court of New Jersey
• Decided: February 7, 1923
• Status: Published

Opinion

Per Curiam.

Our consideration of this case satisfies us that the decree appealed from should be affirmed, and we would he content to affirm upon the opinion of Vice-Chancellor Learning, except for the fact that a ground of reversal that was not discussed in the opinion has been urged before us.

The purpose of the bill is to restrain the defendants from erecting buildings upon certain lands owned by them in Atlantic City in alleged violation of certain neighborhood restrictions, which, it is' claimed, applied to this property.

The whole tract is two hundred and thirty-one and sixty-four hundredths feet in depth. The buildings, the erection of which was sought to be restrained, cover only ninety-six and sixty-four hundredths. No building has been commenced on the remaining one hundred and thirty-five feet, nor is there any suggestion that the erection of a building thereon is contemplated. The ground of reversal referred to is that the decree is erroneous because the complainants were entitled to the restraint prayed for, so far as this part of the tract is concerned. The contention is without merit. As there is no threatened violation of the restrictive covenant, upon this part of the tract, no ground of relief is shown with relation thereto; for it is only in cases where a violation of such a covenant is presently threatened that a court of equity will interfere.

The decree under review will be affirmed.

For affirmance — Ti-ib Chibe-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbach, Williams, Van Buskirk—11.

For reversal—None.