On appeals from judgments of the District Court for the Third Judicial District of the county of Bergen.
For the appellant, Cox & Walburg (William H. D. Cox, of counsel).
For the respondents, Major, Back & Carlsen (James A. Major, of counsel).
Before Justices Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. Plaintiff Sadie J. Folley seeks recovery of damages for injuries claimed to have been tortiously inflicted. Her husband, George, sued per quod. The gravamen of the actions is the asserted breach by the defendant landlord of a duty to use "due and proper care to keep and maintain the
stairways of" a dwelling leased to Sadie, by indenture executed by her on or about January 22d, 1934, "in a safe and proper condition." Sadie lost her footing and fell when the heel of her shoe sank into the linoleum on the landing of the cellar stairway, unsupported because of a rotten strip of wood underneath.
The District Court judge, sitting without a jury, found for the plaintiffs; and from the consequent judgments, defendant appeals.
The term of the lease was fourteen and one-half months, to commence on February 15th. However, the lessee entered into possession on February 12th, and on that day suffered the mishap made the basis of these actions; and this court, in reversing a prior judgment in favor of plaintiffs, held that, on the proofs there made, the plaintiff lessee "went into the premises * * * three days before the term of the lease began, apparently without any authority, and, so far as the record discloses, without any knowledge on the part of the defendant," and that there could not be drawn from the evidence "an invitation to the Folleys to enter the premises before the time fixed in the lease or to deduce a legal obligation upon the defendant to have the repairs made before the beginning of the lease term." 13 N.J. Mis. R. 293.
The lease did not impose upon the landlord the obligation to make repairs. Plaintiffs rely upon an asserted oral undertaking by the landlord's president, on behalf of his principal, before the making of the lease, to "finish them [the premises] up and put them in first-class order downstairs, and clean them * * *; clean and repair all downstairs."
Upon the retrial, there was introduced, apparently without contraversion, evidence that in the latter part of January, several days after she had executed the lease and paid a portion of the first month's rent, the lessee, to obviate the necessity of providing "coal for the two houses," sought and procured the landlord's permission to enter into possession of the leased premises before the beginning of the stipulated term. There was ...