Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Whellkin Coat Co. v. Long Branch Trust Co.

Decided: September 27, 1938.

WHELLKIN COAT COMPANY, IMPLEADED, ETC., RESPONDENT,
v.
LONG BRANCH TRUST COMPANY, APPELLANT



On defendant's appeal from the District Court.

For the appellant, John W. Slocum (Jacob Steinbach, Jr; of counsel).

For the respondent, McCarter & English (Sidney R. Pine, of counsel).

Before Justices Trenchard, Parker and Perskie.

Parker

The opinion of the court was delivered by

PARKER, J. The case arose out of damage done to certain furs belonging to the respondent and contained within a building owned and operated by the appellant Trust Company. It appears without substantial dispute, except as hereafter noted, that the rooms in the building were rented in subdivisions to two or more tenants, the owner retaining control of the passageways and roof. One of these tenants was George Silberstein who joined in the action below as a plaintiff, as to whom there was a judgment for the defendant, and from which he apparently does not appeal. The plaintiff, Whellkin Coat Company, entrusted to Silberstein a quantity of furs for the purpose of having the same treated in some way by him, and while these furs were in the premises of which he was a tenant they were damaged by water which was due to a leaky condition of the roof of the building. There was a judgment for the Coat Company in the District Court of $400 besides costs, and the defendant appeals.

The case was tried at great length and we have before us a voluminous state of case of some two hundred and thirty typewritten pages consisting of a stenographic report of the trial and other matters pertinent to the litigation. There are forty-four specifications of error running over some twenty pages, and the brief for the appellant of forty pages. Many of the specifications are technically faulty as, for example, that the court admitted testimony to this or that effect, or upon this or that subject; and such specifications have

naturally not been considered. The other specifications are grouped in the brief under ten points.

It may as well be noted at this point that a great deal of the evidence related to the claim of Silberstein, which, as we have said, was rejected by the court; and so far as the evidence refers to his claim alone it naturally has no place in this appeal. We confine our consideration of the matter to the question of liability on the part of the Trust Company appellant and the trial proceedings as regards that company.

The general theory of recovery was, of course, based upon the proposition that Silberstein as a tenant doing business as a treater of furs, received the property of the Coat Company in the normal course of his business; that this property was lawfully on the premises and as of right and not by mere license; that it was the duty of the owner of the building to exercise reasonable care to see to it that the roof was kept in reasonable repair, not only as regards the safety of persons within the building, but also as respects property lawfully there; that that duty was not performed and that the damage resulted in consequence. We think that this theory is supported by a long line of cases, among which the following may be cited, viz.: Perry v. Levy, 87 N.J.L. 670, in which case a ceiling fell because of leakage in the roof, falling on the head of a tenant; O'Brien v. Staiger, 101 Id. 526, in which there was a leaky roof and the water collected on the kitchen floor of an apartment and plaintiff slipped and fell thereon; Ionin v. E.D. & M. Corp., 107 Id. 145, in which the facts were substantially similar to those in Perry v. Levy; Bland v. Gross, 10 N.J. Mis. R. 446 (ceiling fell on tenant's head); Sidway v. Greater Atlantic Finance, &c., Co., 12 Id. 83 (roof used for drying clothes defectively maintained so that tenant fell thereon); Buckalew v. New Brunswick, 113 N.J.L. 338 (market shed rented in sections to hucksters and roof collapsed). We do not think it is claimed for the appellant that this rule is confined merely to persons and does not apply to property, but if such claim is made we think it is without substance.

The briefed argument for the appellant is presented under ten points, which will ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.