On appeal from the Essex County Court of Common Pleas.
For the plaintiff-respondent, George T. Vickers.
For the defendant-appellant, Joseph J. Corn.
Before Brogan, Chief Justice, and Justices Parker and Porter.
This is an appeal from a judgment for the plaintiff in the Essex County Court of Common Pleas. The case was heard by Judge Van Riper sitting without a jury and he determined the facts and the legal questions arising therefrom.
The plaintiff as lessee (by assignment from the original lessee, Marius Constantine) sued to recover the sum of $600 deposited with the defendant owner for the faithful performance of the covenants in a lease between the defendant and the plaintiff's predecessor, lessee, to whose rights and obligations plaintiff succeeded. The lease in question was made on April 24th, 1936, for three years, the term to commence on May 1st, 1936, and to expire on April 30th, 1939. The present defendant became the owner of the premises February 15th, 1939, subject to the lease mentioned above.
Plaintiff avers that he became entitled to this deposit because at the expiration of the term the rent reserved in the lease had been paid and the premises surrendered according to the provisions of the lease covenants; that demand was made by him for the return of the deposit money and refused.
The defendant set up several defenses and counter-claims. It is said that the plaintiff and his predecessor, Constantine, failed to perform in accordance with the covenants and conditions of the lease, i.e., (a) they were obliged to pay the water rents and did not do so; (b) the lease provided that the premises should not be used for any purpose other than "bachelor apartments" (sic) and that they were not exclusively so used; (c) they were required by the lease to make all necessary interior repairs and failed to do so; (d) they failed to keep the premises in as good condition save for wear and tear as they were in at the commencement of the term; (e) they failed to yield peaceable possession of the premises in good condition; (f) they did not surrender possession of the premises at the end of the leasehold term.
The counter-claim is stated in five counts, in the first of which $10.35 is demanded for non-payment of water rents; in the second for violation of the provision regarding bachelor apartments, the sum of $1,000 damages is demanded; in the third, for not making necessary repairs, the sum of $3,000 is demanded; in the fourth, for quitting the premises on the 1st day of May, 1939, instead of the previous day, the sum of $225 is demanded; in the fifth, for keeping furniture and certain other chattels in the premises beyond May 1st, 1939, the sum of $200 is demanded.
The court, in deciding the matter, said that the testimony presented four defenses -- the failure to vacate; the departure from the use set forth in the lease; the repairs that were not made, and water bill unpaid. Defense counsel conceded that these were the issues. As to the first, the court found that since the lease expired on Sunday, April 30th, 1939, the lessee had until the following day to move out, as he in fact did; as to the use of the apartments by others than bachelors, the ...