On appeal from the Essex County Circuit Court.
For the plaintiffs-appellants, Rossbach & Crummy.
For the defendants-respondents, McCarter & English.
The opinion of the court was delivered by
RAFFERTY, J. Appellants, plaintiffs below, instituted suit in the Essex County Circuit Court against respondent, defendant below, alleging loss in rent claimed to be due under a certain contract of lease made by appellants with testator of respondent and failure of respondent to pay certain taxes to the city of Newark, as provided for in this lease, as items of damage.
The evidence submitted on behalf of plaintiffs at the trial of the cause was for the most part documentary. Testimony as to the amount of taxes levied for the year 1932 and the date of the fixing of the tax rate for that year was offered by one Fitzsimmons, a representative of the tax board of the city of Newark. A. Judson Clark, Jr., who appears to be one of the parties appellant, testified as to matters affecting the whole transaction.
The defense to the action, as set up in the answer, is a surrender by operation of law.
At the close of plaintiff's case, counsel for defendant moved for a nonsuit on the ground that, under the evidence submitted, defendant, by operation of law, had been wholly released from any liability to plaintiffs. The trial court, after argument, granted the motion for nonsuit. Appellants contend that this action of the trial court was erroneous and that there was evidence sufficient to raise a question of fact for the jury to decide.
The undisputed facts appear to be that on June 26th, 1914, A. Judson Clark, as attorney in fact of Alfred C. Getchius, and Sarah Elizabeth Clark, individually, entered into a contract of lease affecting certain premises situate in the city of Newark, with Joseph M. Byrne, testator of defendant. The lease provided for a term of thirty years, with options of renewal for additional terms, fixed the amount of rentals for the first ten years of the term and established a formula for
the fixing of rentals for each succeeding ten years. Lessors agreed that the lessee "shall have the privilege of assigning this lease to such person, persons, or corporations as he shall elect."
Contemporaneously with the making of this lease, the parties lessor, by a separate instrument, agreed to convey to the lessee a described portion of the leased premises for a stipulated sum. This agreement contained a similar provision for assignment.
It appears from the testimony of Clark, Jr., and from documentary evidence submitted, that Byrne assigned the lease on August 10th, 1914, to Broad and Market Building, hereinafter called the Corporation. This assignment is not in evidence. However, the Corporation ...