On appeal from a judgment of the Essex County Circuit Court.
For the plaintiff-appellant, Precker & Precker and Gerald T. Foley.
For the defendant-respondent, Skeffington & Walker.
The opinion of the court was delivered by
DONGES, J. Defendant was the owner of an apartment house in the city of Newark. Plaintiff was a tenant therein from November 1st, 1928, until July 1st, 1932, at which time she leased another apartment in the same building under a monthly tenancy at $55 a month. Plaintiff testified that she inspected the new apartment before leasing it and objected to the location of a radiator in the bathroom; that she was five feet ten and one-half inches in height and weighed about two hundred and eighty pounds, and feared injury because the radiator was, in her opinion, too close to the toilet; that the defendant was present with the superintendent of the building when she inspected the apartment and agreed to change the location of the radiator, which promise was repeated several times after she moved in, but never performed. In September, 1933, the letting was changed from one at $55 a month to one at $50 a month. At this time nothing was said about changing the location of the radiator. There was a request about painting the kitchen, which was done. On or about November 20th, 1933, plaintiff was burned while using the toilet, such burns being on the outside of the left foot from the small toe to the middle of the arch, and on the sole. For these injuries plaintiff sued, alleging that defendant agreed to change the location of the radiator, but failed to do so. At the trial, the trial judge directed a verdict for the defendant, from which this appeal is taken.
In the absence of a continuing nuisance or of an express contract, the relation of landlord and tenant, at common law, imposed the duty of repairing the demised premises upon the tenant. A departure from this rule is in the failure to
reasonably maintain hallways, stairs or other ways and appurtenances, common to the use of tenants in apartment houses, it being generally held that such duty rests upon the landlord, and for failure to perform this duty he has been held liable, or where the landlord voluntarily assumes the task of repairing or altering the demised premises and does it in a negligent manner.
In the instant case, there is an utter failure of proof to bring it within either of the recognized exceptions to the rule. Here the tenant, in September, 1933, with a full knowledge of the physical conditions entered into a new agreement at a reduced rental, without any complaint or agreement for a change of such conditions. It is well settled that, in the absence of express contract, there was no duty upon the landlord to alter or repair the demised premises. Naumberg v. Young, 44 N.J.L. 331; Heintze v. Bentley, 34 N.J. Eq. 562; Murray v. Albertson, 50 N.J.L. 167; Barthelmess v. Bergamo, 103 Id. 397.
The agreement in effect at the time of the alleged injury did not include or contemplate, under the undisputed proofs, any alteration of the location of the radiator or of any fixture in the bathroom. Hence defendant would not be liable for any injury to plaintiff by reason of the location of the radiator. The direction of a verdict for defendant was justified.
In view of our conclusion, as above stated, it is not necessary to deal with the question of assumption of risk by the plaintiff.
The judgment is affirmed.
For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, DEAR, WELLS, ...