On appeal from the District Court of the First Judicial District of the county of Essex.
For the appellant, Schotland & Schotland.
For the appellee, Fast & Fast.
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. Does a judge of a District Court, who has ordered the entry of a judgment in favor of the defendant, in a cause tried before him, thereafter, on plaintiff's rule to show cause, have the power to change that judgment by entering without a retrial, a judgment (as here of $250) in favor of the plaintiff on the ground that he (judge) had erroneously decided the case in the first instance?
The facts out of which this question arises are these: Plaintiff was a tenant of the defendant, who owned a building situate at the southeast corner of Sixth street and Third avenue, Newark, New Jersey. This building is one story high and houses five stores under one common roof controlled by defendant. The plaintiff occupied the corner store, storage room and part of the cellar of the building and kept quantities of reserve stock (grocery supplies) in the cellar and stock room. On July 28th, 1933, plaintiff sued defendant, in tort, for alleged losses sustained by him, in May, 1929 (first count) and in December, 1929 (second count), as a result of rain seeping from this leaky common roof and damaging his stock. The case was tried on the theory that it was defendant's duty to keep this common roof in good condition, i.e., free from leaks; that the defendant failed after due notice thereof and within a reasonable time thereafter to repair it and thus breached its duty in the premises. Buda v. Dzuretzko, 87 N.J.L. 34; Perry v. Levy, Ibid. 670. Defendant, conceding its obligation to repair the roof, offered proof tending to indicate that it had fully discharged it.
The trial judge, sitting without a jury, was not impressed with plaintiff's proofs. In deciding the case, in the first instance, he pointed out that it was a "scrambled sort of thing;" that plaintiff waited "four years before starting
suit;" that referring to letters concerning the notice, he said, "I really can't pay very much attention to them. I don't think he [president of building and loan association] ever received them;" that there was "an awful lot of manufacturing in the testimony." He was, however, of the opinion that defendant was under the obligation to keep the roof in repair; that defendant's president was called concerning these leaks and that he sent up, as soon as possible, a man to make them. And although the trial judge was of the further impression that the plaintiff had suffered damage yet he concluded that the defendant was not responsible to the plaintiff; "they [defendant] did all they could." Accordingly the judge directed the entry of a judgment for the defendant. This judgment is based on the first count; no one questions the judgment of no cause of action in favor of the defendant as to the second count.
Thereafter plaintiff obtained a rule to show cause why the judgment entered, "should not be set aside and judgment entered for the plaintiff, or in the alternative, why a new trial should not be granted, or such other relief as shall be equitable and just." The basis for the ruling being (paragraph 7 of the affidavit of Moskovitz) that "* * * the judgment heretofore rendered was contrary to the weight of evidence and judgment should have been given for the plaintiff; further that there was no evidence or insufficient evidence for a finding in behalf of the defendant and that the court did commit other and various errors in the cause."
In disposing of the rule to show cause the trial judge, inter alia, said:
"At the close of the trial I rendered judgment for the defendant and I now say that my verdict at that time was erroneous, and I now hold that it was the duty of the defendant company to see that its roof was in good condition and free from leaks, and that when they received notice from time to time it was their duty to make repairs within a reasonable time, that they did not do this and plaintiff was injured.
"I feel that although there was some doubt as to the precise time of the damages, and that notwithstanding, they showed =340 that during or about the month of May, 1929, damage was caused to plaintiff's ...