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Stern Holding Co. v. O''Connor

Decided: November 14, 1938.

STERN HOLDING COMPANY, RESPONDENT,
v.
PHILIP O'CONNOR ET AL., PARTNERS, ETC., APPELLANTS



On defendants' appeals from the District Court.

For the appellants, Nicholas S. Schloeder.

For the respondent, Schumann & Schumann (Emil W. A. Schumann, of counsel).

Before Justices Trenchard, Parker and Perskie.

Parker

The opinion of the court was delivered by

PARKER, J. These appeals are from judgments for plaintiff after the retrial of cases considered in Nos. 402 and 403 of the January term, 1938, of this court, wherein there were reversals of judgments for the defendants. The two cases were retried together, some additional evidence was taken (which will be presently considered) and judgments entered in favor of the plaintiff, as already noted. The opinion of this court in No. 402 is reported in 119 N.J.L. 291; 196 A. 432, and the per curiam in No. 403 is reported in 119 N.J.L. 347; 196 A. 433.

There were two suits for unpaid rent of vacant land to be used for dumping purposes. The rent claimed in No. 403 was for the months of March to September, 1936, inclusive; that claimed in No. 402 for October, 1936, to February, 1937,

inclusive. Both claims were based on the same lease; and it was expressly stipulated that any judgment entered in the case relating to the earlier period should control the other case as well.

As stated in our former opinion, the trial court found for defendants on the ground that the ordinance of Jersey City prohibited the dumping of "garbage" within city limits, and that this invalidated the lease because the document contemplated the dumping of garbage. The reasons for reversal are stated in that opinion, and need not be repeated here. At the second trial, the evidence taken at the first one was stipulated into the cases, and the defendant Philip O'Connor testified as an expert witness that in the broad trade usage, as used in the county of Hudson, from his experience, "garbage" is all the refuse from households, such as decayed food, ashes, tin cans, paper. To quote his testimony, "there is nothing separated in Hudson county, it is all in one." He went on to say that the waste from houses and buildings "is put out at the curb * * * it is all mixed garbage * * * rubbish of all descriptions * * * and the truck comes along and we load it and cart it and take it to the dump." He added that it was impossible to separate it into components, when so received. Based on this evidence, the argument before the trial court was, and is here, that the word "garbage" both in the lease and in the city ordinance, meant or included any mixed refuse, and particularly ashes, tin cans, and the like, and that in consequence defendants could make no use whatever of the demised premises within the terms of the lease. The trial judge refused to take that view of the matter, and we think that he was right, and for at least two reasons.

The language of the lease is this: "for the dumping of ashes, garbage, street sweeping and other refuse."

It is to be noted that in the lease "garbage" is distinguished from "ashes" and "other refuse." On the face of the lease the meaning appears to be that first given in Webster's International Dictionary, viz., "Offal, as the entrails of an animal ...


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