On appeal from the Supreme Court.
For the appellant, Gaetano M. Belfatto.
For the respondent, Herbert A. Kuvin and Jacob S. Glickenhaus.
The opinion of the court was delivered by
WELLS, J. This is an appeal from an order of reference made by a Circuit Court judge in a Supreme Court issue, pending in the Essex Circuit, and from the report of the referee filed therein and judgment entered thereon in favor of the defendant-appellee and against the plaintiff-appellant.
In the month of September, 1924, the appellee, by a written lease rented to appellant a building in Newark for a period of five years. The appellant conducted in the store part of said building a fruit, fish and chicken business, and sublet the apartments over the store.
A deposit of $345 was made by appellant with appellee as security for the payment of the last three months' rent and for the faithful performance of all the covenants and conditions under said lease.
The appellant spent $925 for fixtures and other work in making the premises suitable for his business, and claims he was doing a profitable business when appellee without notice to him, on June 10th, 1928, entered the leased premises to make repairs, tore down the east wall thereof, cluttered up the passageway and did such other acts as to make it impossible for appellant to carry on his business and caused him to lose the tenants in the apartments over the store.
On June 20th, 1928, appellant brought a suit in the Supreme Court against the appellee for damages, resulting from loss of rents of the sublet apartments, the loss of profits in his business, for the recovery of money spent for the fixtures, and also for the recovery of the $345 deposited as security.
The appellee filed an answer denying the allegations of the complaint, claiming that he entered upon the premises for the purpose of making necessary repairs at the request of the appellant and under an authorization contained in the lease.
The appellee also filed a counter-claim against appellant to collect the rent for the unexpired term and for damages in failing to perform the covenants requiring him to make repairs and to deliver up the premises in as good condition as he found them.
Issue was joined, and on October 28th, 1929, the case was in the daily call of cases in and for the Essex Circuit and was marked "ready." The appellant's attorney, however, was not prepared to proceed with the trial and the appellee's attorney was ready, whereupon (the record shows) the attorneys for the respective parties consented in open court that the matters in controversy between the parties be referred to some competent person to ascertain, determine and report upon.
A formal order of reference bearing date October 31st, 1929, reciting these facts and specifically stating that the matters in controversy were referred by consent of the attorneys of the respective parties was signed by the trial judge and entered in the minutes on November 7th, 1929.
On November 21st, 1929, the appellant applied to the trial judge to strike from said order of reference the word "consent." This application was denied and the case was subsequently heard by the referee, both parties participating in the hearing, although the appellant objected to the referee taking testimony on the ground that matters of account not being involved, the case was not a proper one for reference.
On December 4th, 1929, the appellant filed in the Supreme Court clerk's office a reservation of his right to a jury trial.
On April 25th, 1930, the referee reported in favor of the appellee on his counter-claim and assessed ...