On appeal from the Bayonne District Court.
For the appellant, Sara V. Dunn.
For the appellee, Samuel Yoblonsky (Herman L. Fast, of counsel).
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This appeal brings up for review a judgment of $90 recovered by the plaintiff below against the defendant below in the District Court of the city of Bayonne.
The case was tried by the judge of the court sitting without a jury. Counsel for the respective parties were unable to agree upon the state of case. Thus the trial judge settled and certified the same for this appeal.
The state of case, so certified, discloses that the plaintiff sued the defendant for two months' rent (April and May, 1934) which the plaintiff alleged was due under the written lease with the defendant, dated March 1st, 1934, for the term of one year, at the rental payment of $45 a month. Defendant entered into possession and paid the March rent. The defenses to the suit were that plaintiff, on March 12th, 1934, evicted the defendant from the premises; that plaintiff
took possession thereof and padlocked them; that as a result of the plaintiff's action, the defendant was deprived of the use of the premises for about one and one-half hours.
The plaintiff proved the lease and the defendant's failure to pay the rent. Defendant himself testified that he conducted a butcher shop in the premises in question. That on March 10th, 1934, he "closed up the store with the intention of giving it up as it did not pay." That on that day he removed all perishable merchandise from the premises but that the fixtures still remained therein; that on March 12th, 1934, the store was not open for business; that he gave the key to the store to one, Howard Redford, an employe of the Claude-Neon Sign Company, with directions to remove a Neon sign from the premises; that he did not abandon the premises and still retained the key for it; that at no time did he notify the plaintiff that he was vacating the premises. The proof further indicates that while Redford was in the premises about nine-thirty A.M. of March 12th, 1934, dismantling the sign, plaintiff's agent, his son, came in and said that the plaintiff was taking possession of the premises and showed Redford some papers and a badge; the latter left the premises whereupon the son posted a paper on the door and padlocked the premises. The posting of the paper on the door and the padlocking of the premises were corroborated. It further appears that Peter Karrelick, another employe of the defendant, came to the premises to ascertain why Redford had been put out and the premises padlock. After some discussion with the son the padlock was removed between ten-thirty A.M. and eleven A.M. of the same day, March 12th, 1934. The son testified for the plaintiff that he was his father's agent; that he flashed no badge and that the paper posted on the door, which was not produced, Karrelick claimed that the son took it away, was a mere notice for them to come to see the plaintiff; that the only reason the premises were padlocked, for the short time already stated, was because plaintiff thought that the fixtures were being removed by Redford without authority and to protect the contents from being stolen; that when Redford and Karrelick returnedthe
padlock was removed and defendant's representatives were permitted to ...