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McCarthy v. Bye

Decided: April 17, 1937.

ROSE MCCARTHY, PLAINTIFF-APPELLEE,
v.
ELEANOR S. BYE, EXECUTRIX OF THE ESTATE OF CHARLES A. BYE, DECEASED, DEFENDANT-APPELLANT



On appeal from the Ocean County Court of Common Pleas.

For the appellant, Durand, Ivins & Carton (J. Victor Carton, of counsel; Robert V. Carton, on the brief).

For the appellee, Charles J. Berkowitz (Leo Robbins, of counsel).

Before Brogan, Chief Justice, and Justices Case and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. This is the defendant's appeal from a judgment based on a jury verdict (so we are told) in the Ocean County Court of Common Pleas of $2,500 in favor of the plaintiff.

We say we are told that such a verdict was returned and judgment entered thereon because that information comes to us in the briefs only of respective counsel. The state of case submitted, beyond the charge of the court, contains no information

as to the determination of the jury nor does it contain a copy of the judgment, if any, entered. Ordinarily, even though the point is not raised, this should lead to a dismissal of the appeal. Zyk v. Prudential Insurance Company of America, 13 N.J. Mis. R. 714, 715; 180 A. 628. To make that disposition of this appeal, however, would place the plaintiff in a position of holding a judgment against defendant, perhaps enforce the payment thereof, and this when that judgment, in our opinion, finds no legal support on the proofs adduced. We, therefore, proceed to the merits.

On September 11th, 1934, plaintiff entered into a written lease with defendant, Eleanor S. Bye, as executrix of the estate of Charles A. Bye, for premises located at 310 Second avenue, Lakewood, New Jersey, for a period of one year commencing October 1st, 1934, at the annual rent of $480, payable in twelve equal monthly payments of $40 on the first day of each and every month. This lease in nowise obligated defendant to either inspect or repair the demised premises. Plaintiff's possession of the premises beyond the expiration of the term of the lease is neither explained nor challenged.

On November 26th, 1935, plaintiff, while leaving the premises through the rear door stepped upon the rear porch; the porch collapsed and she fell some six or eight feet to the floor of the cellar below causing the injuries for which she claims defendant is liable. To enforce that liability plaintiff caused this suit to be instituted against the defendant in her representative capacity as executrix of the estate of Charles A. Bye.

The gravamen of the amended complaint (paragraph 3-A), is as follows: "That the defendant, Eleanor S. Bye, between October, 1934, and January, 1935, undertook to make inspection and repairs to the demised premises and she by her servant and/or agent did so negligently and carelessly make inspection and repairs, that the plaintiff, Rose McCarthy, was injured." (Italics ours.)

It is conceded for plaintiff that the basis upon which liability is sought to be fastened upon defendant arises not from the contractual relationship ...


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