On appeal from a judgment of the District Court of the Third Judicial District of the County of Bergen.
For the appellant, Abraham Warren.
For the respondent, William V. Breslin.
Before Justices Trenchard, Case and Heher.
The opinion of the court was delivered by
HEHER, J. On December 18th, 1934, plaintiff leased to defendant "the apartment designated as 1-A on the first floor of the building known as 61 Pierrepont Street," in the Borough of Brooklyn, in the City of New York, for the term of twenty-one months, commencing on the first day of January, 1935, at a fixed annual rental payable in equal monthly installments, in advance. Defendant had possession of the premises until June 23d, 1936, when he vacated leaving rent in arrears from the prior March 1st in the aggregate sum of $230. The apartment remained vacant until the expiration of the demised term, and this suit was brought to recover the accrued rent for this period as well as the arrears for the duration of occupancy.
The District Court Judge, sitting without a jury, entered judgment of "no cause of action;" and plaintiff appeals.
The essential inquiry is whether the judgment is tainted with error in matter of law specified in the grounds of appeal; and we find that it is. The defense interposed was lacking in validity; and there should have been judgment for plaintiff on the proofs. This point is directly raised by the reasons for reversal. See, in this connection, Pollack v. New Jersey Bell Telephone Co., 116 N.J.L. 28.
The contract of lease was reduced to writing; and it contained this provision: "It is understood and agreed that the said apartment shall be used for residential and for a dispensing optician." The state of the case settled by the trial judge reveals that the reason given by defendant for the nonpayment of the accrued rent was that "the demised premises were let and rented for residential purposes and for dispensing optician," and "he would not have rented the premises if he was not permitted to use" them "for the purpose of a dispensing optician, and this fact was specifically made known to the plaintiff at the time of the execution of the lease, and provision to this effect was typewritten in the printed form
of the lease;" and that defendant "put in evidence a notice received by him from the City of New York, dated March 6th, 1935, which notified the tenant that the display of a dispensing optician sign and the operation of an optical business at the premises was a violation of a certain Zone Resolution, and requiring the tenant to remove the sign and cease using said premises for such business." The notice discloses that the apartment was in an eight-story brick building "occupied or intended to be occupied as a class A multiple dwelling."
Plainly, these considerations do not serve to exonerate defendant from his contractual obligation. There was an utter lack of evidence tending to show that the business use thus specified was in fact within the interdiction of municipal regulations in force at the time of the making of the lease (it was not contended that such was the case), or had thereafter been lawfully inhibited by local authority. Proof of the receipt of what purported to be a notice signed by the Commissioner of Buildings for the Borough of Brooklyn, without more, obviously did not warrant a finding that the stated business use would contravene the terms of a local ordinance or a regulation lawfully promulgated; and thus there was no evidence of such local barrier to the stipulated use as would relieve defendant from his rental obligation under the lease.
Moreover, if the defense interposed were factually well-founded, it would be wholly unavailing. The issue presented to and determined by the District Court Judge was, to quote from the respondent lessee's brief, "whether or not the lease contained an express covenant of the fitness of the premises for a particular purpose and whether or not said particular purpose subsequently became unlawful." And the contention is made that, "By reason of the fact that the premises could not ...