On re-argument. On appeal from the Supreme Court, Essex County Circuit.
For the plaintiff-respondent, Bartholomew & Dwyer (William O. H. McEnroe and Walter X. Trumbull, of counsel).
For the defendants-appellants, Colie & Schenck (Frederic R. Colie and Robert W. Kirkman, of counsel).
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. The defendants-appellants, partners, the owners of premises leased to the F.W. Woolworth Company situate at 494-6 Clinton avenue, Newark, New Jersey, appeal from a judgment in favor of the respondent, who at the time of the accident was employed as a sales girl by the Woolworth Company. She was severely injured when a radiator attached to the wall back of where she stood became detached and struck her. Prior to the occurrence the appellants had leased the premises to the Woolworth Company under a writing which provided: "It is also agreed by said Tenant that it will keep up repairs to the interior of such parts of the building as are occupied by it. Landlord to keep in repair the exterior parts of the building, including the roof, conductor pipes, sidewalk, plate glass of show windows and heating plant." (Italics ours.)
This cause was argued at the October, 1939, term of this court and the judgment under review was affirmed. The
cause was re-argued at this term pursuant to leave granted. At the original presentation there were four grounds of appeal but upon the re-argument two were abandoned and two, only, argued. They are:
1. Error in denying motion for nonsuit.
2. Error in denying motion for a direction of verdict.
The complaint charges the appellants with four specific acts of negligence: (1) improperly constructing and erecting the radiator; (2) permitting the radiator and its supports to be in an unsafe condition, with knowledge and notice thereof; (3) failure to maintain and repair the supports of the radiator; (4) failure to inspect the radiator and its supports.
The answer denied these allegations but admitted ownership and retained possession and control of the exterior and roof of the building for the purpose of making repairs only, but denied that they reserved and retained control of the heating plant.
The respondent put in evidence the agreement and lease; limiting its purpose to showing thereby reservation, and control, by the appellants, over the heating ...