On appeal from the Essex County Circuit Court.
For the respondent, James F. X. O'Brien.
For the appellants, Schneider & Schneider (Jacob Schneider and Andrew Van Blarcom, of counsel).
Before Gummere, Chief Justice, and Justices Parker and Case.
The opinion of the court was delivered by
CASE, J. Plaintiff was injured on the evening of October 18th, 1926, as he was leaving a building known as the Laurel Gardens in the city of Newark where, on admission gained by ticket, he had been a spectator at a boxing exhibition. He brought suit against Vladimir Kussy, producer of the exhibition and part-time lessee of the premises, and also against the Zemels, owners of the building. The jury awarded a
verdict for the plaintiff against the owners, who now appeal. The verdict went against the plaintiff as to the defendant Kussy.
The appellants present that the court erred in refusing their motions for a nonsuit and for a direction of verdict in their favor.
A motion for nonsuit admits the truth of the plaintiff's evidence and of every inference of fact that can be legitimately drawn therefrom. Weston Co. v. Benecke, 82 N.J.L. 445. A refusal to nonsuit for failure of proofs will not justify a reversal if the defect be supplied by evidence thereafter taken during the progress of the cause. Maudsley v. Richardson & Boynton Co., 101 Id. 561. Upon a request for a direction of verdict in favor of a defendant, the proof must be so clear that no other reasonable conclusion can be legitimately reached before such a peremptory instruction can be given. Consolidated Traction Co. v. Reeves, 58 Id. 573.
Reviewing the testimony to ascertain the aspect thereof that is most favorable to the plaintiff, we learn:
The Zemels came into the ownership of the premises on January 21st, 1925. Kussy was then sublessee under one Samel. On October 14th, 1926, a new lease was effected directly from the Zemels to Kussy, wherein the latter, for a fixed money rental, leased the use of the hall one night each week, commencing October 18th, 1926, over a period of twenty-three weeks, for the conducting of boxing exhibitions; reserving to the Zemels, however, or to their concessionaires, the exclusive right to sell drinks, tobacco and refreshments and for their servants and agents to enter the premises during performances for that purpose; also reserving to the Zemels five ringside seats at each performance. At least two of the Zemels were present at every performance. Steinmetz, manager for ...