Opinion
Decided October 20th, 1930.
On appeal from a decree of the court of chancery advised by Vice-Chancellor Fallon, who filed the following opinion:
"My consideration of the aforesaid matter actuates me in determining that the relief prayed for by the complainants, in their amended bill of complaint filed May 23d 1927, should be granted. I am convinced that James Nolan, who was the draftsman of the contract bearing date February 16th, 1924, and also the deed bearing date March 29th, 1924, recorded in the register's office of the county of Hudson, March 31st, 1924, in book 1512 of deeds, on page 546, and also the bond and mortgage bearing date March 29th, 1924, which mortgage was recorded March 31st, 1924, in book 1230 of mortgages, on page 68, did not appreciate the intention of the parties. Mr. Nolan was not a lawyer. He was engaged in the real estate and insurance business. If the parties had a lawyer representing them in their business dealings, and particularly a lawyer of their own nationality (Italian), I believe the real intention of the parties would have been effectuated by proper instruments. The proofs indicate that on or about February 9th, 1924, the defendants negotiated with the complainants for the purchase of a parcel of land known as lot No. 394 in block No. 15, fronting on Hillside Place, North Bergen, New Jersey, as shown on a map entitled `Map of property belonging to the estate of Hugh N. Camp, in the township of North Bergen, Hudson county, New Jersey, county block No. 2305, made by Thomas H. McCann, civil engineer, March, 1900, and filed in the office of the register of the county of Hudson, New Jersey, on October 14th, 1901, as map No. 1240,' subject to a certain mortgage lien then of record against said lot, in the amount of $2,800, on which there had been paid off the sum of $280, leaving a balance unpaid thereon of $2,520. After said business transaction had been consummated and a receipt given by the complainants for the sum of $100 on account of the purchase price of $5,400 agreed upon, the complainant, Frank Simeone, gratuitously offered to the defendants, with whom the complainants were on very friendly relations, an easement on a remaining parcel of property owned by the complainants, abutting Main street, so as to afford the defendants a means of exit to said street. As stated by Miss Rose Simeone in her testimony, her father stated that his purpose in so doing was to make it easier for the defendants in winter-time, because Hillside Place is a very steep hill, hard for traveling, and Main street, being not so steep as Hillside Place, would serve as a better means of exit by the defendants from their Hillside Place property to gain access to Main street. I recall that at the hearing counsel had much difficulty in examining the complainant Frank Simeone, and the court had much difficulty in understanding him. Part of his testimony, because of such difficulty, was given through an interpreter. The testimony of Rose Simeone, Lillian Smilari, Peter A. Simeone and Frank Morano, was quite explicit, and clearly indicates, in my judgment, the intention between the parties. I do not appreciate that Mr. Nolan thoroughly understood what the complainants and the defendants intended and contemplated. The proofs disclose that the complainant Frank Simeone undertook to explain to Mr. Nolan, by reference not only to a surveyor's sketch made by Robert Gaw, dated April 20th, 1905, which was exhibited in court and with respect to which the witness was examined and cross-examined, upon which there are some pencil marks, to which said complainant referred, but also by reference to a property map of North Bergen, which Mr. Nolan exhibited to the parties. That Mr. Nolan did not appreciate the intention of the parties and their contemplated purpose is somewhat manifested by the aforesaid contract, for it appears therein that Mr. Nolan, after describing the property which was to be conveyed, on the first page thereof, added on the second page of the contract a recital as to an entrance to be opened up in the rear of the described premises unto Main street, `said entrance to also contain a stairway to be built on the rear of lot No. twenty-seven (27) now owned by the parties of the first part, said entrance and stairway to be built at the expense of the said parties of the first part hereto, to be not less than two feet and six inches in width * * *.' The testimony of Frank Simeone evidences that he wanted to go to his Italian lawyer to explain to him the business transaction between the parties and have him attend thereto, but the defendant Dominick Varlaro said they should go to Mr. Nolan's office, and Mr. Simeone agreed. Mr. Simeone, as evidenced by his testimony, after having endeavored to explain to Mr. Nolan what was intended between the parties, said to Mr. Nolan they would look to him and trust to him to make a square deal for all parties. There appears to have been no ascertainment or determination between the parties as to where the entrance and the stairway was to be located, nor was there any ascertainment or determination as to a description or dimensions thereof. I am convinced that Simeone gratuitously offered to the defendants an opportunity for them to gain access to Main street by means of the property of the complainants, abutting said street. I am also convinced that the complainants did not intend to sell to the defendants, nor did the defendants intend to purchase from the complainants, any portion of the property of the complainants, abutting Main street. I am also convinced that the intention between the parties was merely that the complainants should afford to the defendants an easement such as above referred to, and that gratuitously. The scrivener, Mr. James Nolan, undoubtedly made a mistake in the preparation of the contract, and also in the preparation of the deed. No testimony or proofs was offered in behalf of the defendants. The case is before the court upon the uncontradicted testimony and proofs offered in behalf of the complainants. No consideration was paid by the defendants to the complainants for the land in question, which was to serve as a means of exit by and for the use of the defendants, from their Hillside Place property which they were purchasing from the complainants, to gain access to Main street. The complainants do not question the right of the defendants to the easement aforesaid, and their amended bill of complaint manifests their willingness to afford the defendants a right thereto. Where, as in this case, the width of an easement is not definitely determined by the deed, the law requires that it shall be of reasonable width to accomplish the purpose contemplated between the parties. If the defendants are dissatisfied with the location and description of easement contained in the complainants' amended bill of complaint, I will hear counsel as to the advisability of my appointing a master to determine the reasonableness of the easement thus proposed by the complainants.
"In the case of Louis Stern Sons v. Connolly, 95 N.J. Eq. 356 (at p. 359), appears an excerpt from the case of Hunt v. Rhodes, 26 U.S. 1, which I consider apropos, wherein the United States supreme court stated: `Where an instrument is drawn and executed which professes or is intended to carry into execution an agreement, whether in writing or by parol, previously entered into, but which, by mistake of the draftsman, either as to fact or law, does not fulfill or which violate the manifest intention of the parties to the agreement, equity will correct the mistake, so as to produce a conformity of the instrument to the agreement.' Citing cases.
"I will advise a decree accordingly."
Mr. Nicholas J. Cafarelli, for the respondent.
Mr. Nicholas S. Schloeder, for the appellants.
The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Fallon.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, CAMPBELL, LLOYD, CASE, BODINE, DALY, DONGES, VAN BUSKIRK, MCGLENNON, KAYS, HETFIELD, DEAR, WELLS, JJ. 14.
For reversal — None.