On defendant's appeal from a judgment (Middlesex County Court of Common Pleas) based on jury verdicts in favor of injured plaintiff, wife, for $1,000 and in favor of her husband, other plaintiff, for $172.
For the appellant, George L. Burton.
For the respondents, David T. Wilentz.
Before Brogan, Chief Justice, and Justices Case and Perskie.
The opinion of the court was delivered by
PERSKIE, J. Is a landlord liable to his tenant, in tort, for failure to carry out his promise to repair the leased premises, when that promise was made subsequent to the letting and was not supported by a new consideration?
Defendant was the owner of a two-family dwelling house in New Brunswick, New Jersey. She rented the lower floor to the plaintiff and occupied the upper floor herself. In the rear of each apartment was a porch completely enclosed by a railing. Although there is some proof that plaintiff occasionally permitted defendant to use her porch to hang out clothes to be dried, nevertheless, it is rather clear that the porches were not common porches; they were only for the use of the tenant in the apartment to which they were appurtenant.
On March 19th, 1934, Bertha Rosenberg, while on the rear porch of her apartment for the purpose of emptying a pail of water, leaned against the railing of the porch. The railing gave way and plaintiff was precipitated to the ground some few feet below and sustained injuries for which she and her husband recovered in the amounts already stated.
Plaintiffs admit that there was no agreement to repair the premises at the time of the letting. Their alleged right of action is made to rest upon a promise so made by the landlord a short time, approximately one month, before the accident.
The trial judge denied defendant's motion for a nonsuit, and in charging the jury, among other things, said:
"Now, as stated, the case is a very, very sharp one. It rests entirely upon this alleged conversation and promise that Mr. Rosenberg had with Mrs. Krinick. If that testimony of
Mr. Rosenberg is true, and Mrs. Krinick did promise to repair, then, of course, the Rosenbergs could rely upon that promise to repair for a reasonable length of time. If that length of time, however, became unreasonable long so that the tenants would have the right to say, well, even though the landlord did promise to repair she has not kept her promise and does not ...