BANCONE v. PINTO, 108 N.J. Eq. 397 (1930)

154 A. 529

JOSEPH BANCONE et al., respondents, v. JOHN PINTO et al., appellants.

Court of Errors and Appeals.
Decided October 20th, 1930.

On appeal from an order of the court of chancery advised by Vice-Chancellor Church, who filed the following memorandum:

“This matter came before me on motion to strike out the answer in a bill for specific performance. I granted the motion to strike out.

“It appears that John Pinto and Carmela Pinto, on or about December 1st, 1926, paid $2,000 to complainants, according to a contract, and entered into possession of a property on Roseville avenue, Newark. They took possession of the premises and have been in possession thereof ever since and have been collecting the rents, issues and profits. It was arranged that the title should be closed on January 2d 1927. Although retaining possession of the property, defendants refused to pay the taxes, the interest and installments of the principal on the mortgage specified in the contract of sale, and refused to accept the title.

“The answer says that complainants did not perform the terms and conditions of the agreement, in that they did not complete the inside work of the building and failed to do some work on the outside.

“It seems to me that having been in possession of the property for nearly three years they are not entitled now to set up any such defense. I, therefore, will advise a decree dismissing the answer.”

Page 398

Mr. Ferdinand D. Masucci, for the respondents.

Mr. Frederick H. Pilch, for the appellants.

PER CURIAM.

The order appealed from will be affirmed, for the reasons stated in the memorandum filed in the court below by Vice-Chancellor Church.

For affirmance — THE CHIEF-JUSTICE, TRENCHARD, CAMPBELL, LLOYD, CASE, BODINE, DALY, DONGES, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, WELLS, JJ. 14.

For reversal — None.

Page 399