On appeal from the Supreme Court.
For the plaintiff-respondent, Jerome Alper & Alper (Samuel B. Friedman, of counsel).
For the defendants-appellants, Fred H. Gansler (Leo Yarnoff, of counsel).
The opinion of the court was delivered by
PORTER, J. This appeal is from a judgment in favor of the plaintiff for possession in an ejectment suit and for mesne profits. The plaintiff's right to possession having expired prior to the date of trial the judgment was for possession as of August 7th, 1940, the date of the commencement of the suit against the defendants Estelle Cohen, Magdalena Wessel and William C. Wessel, and the judgment for mesne profits was against the defendant Estelle Cohen only, in the sum
of $900. The trial court on motion directed a verdict in favor of the defendant Saul Cohen. The plaintiff has not appealed from that ruling.
The case was tried by Judge Wolber and a jury in the Supreme Court, Sussex Circuit. His refusal to grant defendant's motions for nonsuit and for directed verdict and rulings on proffered testimony are argued as grounds for reversal. We conclude that the rulings were right and that the judgment should be affirmed.
A jury question was presented on the question of whether or not the premises had been abandoned by the plaintiff who was a lessee with an unexpired term and there was no reversible error on rulings as to the admission of evidence.
It appears that Magdalena and William Wessel, defendants (hereinafter called the Wessels), own certain premises in Vernon Township, Sussex County, which they leased February 19th, 1936, to Martin Operating Co. for a period ending October 1st, 1938, and later extended to September 30th, 1939. The Martin Operating Co. assigned the lease to Carl A. Schneider and Hazel B. Baird who desired to conduct a summer recreation camp on the premises and who assigned the lease to the plaintiff corporation in which they were interested. These assignments were with the consent of the Wessels. The plaintiff conducted the camp business on the demised premises during the summers of 1938 and 1939.
On March 2d, 1939, the Wessels and the plaintiff came to a new agreement, in writing, which amended the terms of the lease in certain particulars and extended its terms to September 30th, 1940. This agreement contained this clause: "First: That as of the date of these presents said lease and extension agreement are in full force and effect and that there are no defaults or breaches of covenant on the part of the lessors, the lessees, or any assigns of the lessees." Under this agreement the rent for the additional year was fixed at $900, which was an increase, payable one-third on April 1st, 1940, one-third on June 1st, 1940, and the balance on June 15th, 1940.
It further appears that the Wessels entered into a lease of the premises with Estelle Cohen, one ...