On appeal from a judgment of the Supreme Court.
For the appellants, Parsons, Labrecque & Borden (Theodore D. Parsons, of counsel).
For the respondents, Kalisch & Kalisch (Isidor Kalisch, of counsel).
The opinion of the court was delivered by
HEHER, J. The appeal is from a judgment of nonsuit in an action ex delicto for negligence against a landlord arising from a fall upon the demised premises suffered by an invitee of the tenant.
These are the material facts and circumstances: On December 4th, 1935, the landowner, William H. Woodward, leased to Dr. Maurice A. Aaronson, a practicing physician, the two-story dwelling house known as No. 12 Washington street, in
the city of Long Branch. A draft of lease prepared in accordance with the landowner's instructions, but not actually executed, fixed the term at one year, and provided that the leased premises were "to be used professionally" by the lessee "in his practice as a doctor of medicine;" and, while the real estate broker, who negotiated the tenancy contract as the landowner's agent, testified that he informed his principal that the prospective tenant "wanted to rent the premises as a Medical Center," he acknowledged that the unexecuted instrument fully embodied "the terms of the agreement of lease" and "the purposes for which the property was to be used." The lessee devoted the first floor of the premises to the practice of his profession (he sublet the second floor); and, on March 17th, 1937, while the tenancy still subsisted on the original terms, the plaintiff, Sadie T. LaFreda, a patient of the lessee, fell on a footway extending from the front porch of the building a distance of twelve feet to the public sidewalk, as she was departing from the premises after having received medical treatment, and sustained injury. This pathway was within the leased premises. It was three feet wide, and constructed of concrete; and the contention was that "the heel of" this plaintiff's "right foot caught in one of the crevices of" the walk.
There was evidence tending to show that the concrete surface was in a state of disrepair, due to wear and tear and the ravages of the elements, and that it was not of "ordinary" and "proper thickness," and was constructed of substance not of "a proper mixture;" and the specifications of negligence, variously stated, were (a) the landlord's failure to "maintain" the footway "in a safe and proper condition," and to keep it "in good repair," and to "prevent" it "from becoming a nuisance or dangerous and hazardous to the life and limb of those lawfully using" it; (b) its construction "with structural defects," in that there was "no proper base or foundation," and there were "insufficient cement and improper drainage," and so a nuisance, and the leasing of the premises in that condition, the landowner knowing that the lessee "intended to use" them "for public or semi-public purposes;" and (c) carelessness in the making of repairs.
It is conceded that there was an utter lack of evidence to sustain specification (c). The contract did not impose upon the landlord the duty of making repairs during the subsistence of the tenancy; and he did not, gratuitously or otherwise, undertake the making of repairs to the demised premises prior to the mishap made the subject of this action.
Nor was there a structural defect in the legal view. It was a condition of disrepair merely. While it is probable that a heavier surface would have been more durable, this is not per se a determinative consideration as regards faulty construction. So far as is revealed by the evidence, the condition dangerous to life and limb was not the result of improper construction, but rather the breakdown of the pavement through the wastage of time and use.
The initial insistence of appellants is that, "where a landlord leases a building for a public or semi-public use, the public is deemed to be invited to make such use thereof by the owner, and the latter cannot evade responsibility of exercising ...