On appeal from the Second Judicial District Court of the county of Hudson.
For the appellants, James H. Sanderson (Abraham I. Feltman, of counsel).
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
TRENCHARD, J. The defendants below appeal from a judgment entered upon the verdict of a jury in favor of the plaintiffs,
in two suits consolidated for trial, to recover for alleged injuries inflicted upon them by the falling of a ceiling in their apartment rented of the defendants.
At the trial, a motion was made for nonsuit, and also for the direction of a verdict for the defendants, which motions were denied.
This appeal may be properly disposed of by a consideration of the propriety of the refusal to direct a verdict, since the rule is that the denial of a motion for nonsuit, if erroneous at the time of the denial, may be corrected by subsequent proof. McGee v. Kraft, 110 N.J.L. 532.
At the time the motion for a direction of a verdict was made, the evidence tended to show the following matters of fact: The plaintiff George Hollingshead was a tenant of an apartment on the second floor of the defendants' three-story, seven-family apartment house, and there resided with his family consisting of his wife and infant child. The ceiling of the kitchen in the apartment became cracked in January, 1934, and from time to time until the happening of the accident on February 12th, 1934, the tenant complained of the condition of the ceiling and the defendants promised to take care of it, but that the defendants utterly failed and neglected to do. On February 12th, 1934, the tenant and his wife, in the night time, went into the kitchen with their infant child, to prepare some hot milk for the child, and whilst so doing the ceiling fell and water came down and injured all of the plaintiffs. Thereupon the tenant called the son and agent of the defendants, and with him, using a flashlight, obtained an entrance into the "cold" apartment immediately overhead of that occupied by the plaintiffs, and there it was found that the waterback in the overhead apartment had been frozen and cracked, with "pieces of ice sticking out of the crack," and was leaking, discharging water upon the floor, which dripping water had caused the break in the ceiling in the tenant's apartment and which resulted in the injury of the plaintiffs.
The motion for the direction of a verdict, so far as we now need to consider it, was predicated upon the contention that
the overhead apartment was not under the control of the defendants, and in support of that argument it is contended that there was no evidence justifying the ...