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Boyle v. Nolan

Decided: September 22, 1939.

JEAN BOYLE, PLAINTIFF-RESPONDENT,
v.
LEO NOLAN AND PETER J. MCGINNIS, AS EXECUTORS OF THE ESTATE OF CAROLINE NOLAN, DECEASED, AND LEO NOLAN AND PETER J. MCGINNIS, INDIVIDUALLY, DEFENDANTS-APPELLANTS



On appeal from the New Jersey Supreme Court (Passaic Circuit).

For the plaintiff-respondent, A. Leon Kohlreiter.

For the defendants-appellants Leo Nolan and Peter J. McGinnis, as executors of the estate of Caroline Nolan, deceased, Cox & Walburg.

For the defendants-appellants Leo Nolan and Peter J. McGinnis, individually, Ward & McGinnis.

Wells

The opinion of the court was delivered by

WELLS, J. This case involves two appeals from the New Jersey Supreme Court, Passaic Circuit, one taken by the defendants-appellants Leo Nolan and Peter J. McGinnis, as executors of the estate of Caroline Nolan, deceased, and the other taken by the defendants-appellants, Leo Nolan and Peter J. McGinnis, individually. The appeals are taken from a judgment entered on the verdict of a jury in favor of the plaintiff-respondent, Jean Boyle, and against the defendants-appellants, plaintiff-respondent, Jean Boyle, and against the defendants-appellants, in the amount of $15,000, later reduced to $10,000 on a rule to show cause.

Nolan and McGinnis, as executors under the will of Caroline Nolan, were the owners of certain premises known as 18

Prince street in the city of Paterson. For some years these premises had been rented on a month-to-month tenancy to one James Boyle, father of the plaintiff, and the tenancy was continued under the executors after the death of Caroline Nolan.

On September 7th, 1937, the plaintiff, Jean Boyle, was residing at these premises with her father. In the evening of that day when Miss Boyle was leaving the house, the porch collapsed under her, resulting in the injuries which form the basis of this action.

At the trial the plaintiff produced testimony tending to show that the collapse of the porch was due to faulty repairs made to the premises after the assumption of executorship by Nolan and McGinnis. Further testimony placed Nolan on the premises at the time the repairs were being made, and charged him with knowledge of and acquiescence in the doing of a "cheap job." Thus, the gravamen of the complaint, as shown by the allegations and proof, is that Nolan and McGinnis, owners of the rented premises as executors, undertook repairs and performed that undertaking in such a negligent manner as to cause injury to the plaintiff.

The defendants denied any participation in or knowledge of faulty construction and offered testimony to the effect that the repairs in question were made during the lifetime of the decedent. Motions for nonsuit and directed verdict were denied, and upon submission of the case to the jury there resulted the verdict and consequent judgment from which these appeals are taken.

Nolan and McGinnis, individually, base their appeal on the fact that the trial court, at the close of the plaintiff's case, allowed a motion to join them as defendants in their individual capacity, whereas process ...


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