On appeal from a judgment of the First District Court of the city of Paterson.
For the appellant, Isadore Rabinowitz.
For the respondent, Cohn & Kohlreiter (Peter Cohn, of counsel).
Before Justices Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. On April 30th, 1934, defendant, by an indenture, leased to plaintiff certain store premises in the main business district of the city of Paterson for the term of six
months, commencing on June 15th next ensuing, at a stipulated monthly rent payable in advance; and the gravamen of this action is the breach of an obligation thereby imposed upon the lessor, as is said, to deliver to the lessee possession of the demised premises at the beginning of the term so prescribed. The state of demand is in two counts: The first seems to be grounded upon an asserted implied duty "to give and deliver possession" of the demised premises on the first day of the term; and the second, upon what plaintiff conceives to be an express covenant to put the lessee in possession on that day.
The lessee stipulated to devote the premises to the conduct of the shoe business; and he was given an option to renew the lease for an additional term of six months. Rent for the first month of the term was paid upon delivery of the lease. and the payment was acknowledged therein.
At the time of the execution of the contract, the premises were tenanted by another, who failed to respond to the landlord's notice to vacate on June 15th. The landlord deemed himself obliged to institute dispossess proceedings, which terminated in a judgment of removal. This judgment was executed on July 7th, 1934, and plaintiff took possession two days later.
The District Court judge, sitting without a jury, found for the plaintiff on the basic issue, and measured the damages at $500, "the loss sustained by plaintiff in the resale of the seasonable merchandise." He also ruled that plaintiff was not liable for rent for the portion of the term he was deprived of possession, and, making allowance for this, he awarded $25 to defendant on her set-off for rent due for the month beginning July 15th, 1934.
It is apparent that the tenant in possession when the lease was executed wrongfully held over after the termination of the tenancy; and the primary question, raised by motions to nonsuit and direct a verdict in defendant's favor, is whether, expressly or by implication, the contract imposed upon the lessor the duty of putting the lessee in ...