On appeal from the Essex County Court of Common Pleas.
For the plaintiff-respondent, Joseph J. Corn.
For the defendant-appellant A.J.M. Holding Company, Lum, Fairlie & Wachenfeld (Charles S. Barrett, Jr., of counsel).
For the defendant the City of Newark, Raymond Schroeder (Thomas M. Kane, of counsel).
Before Brogan, Chief Justice, and Justices Parker and Porter.
The opinion of the court was delivered by
PORTER, J. The plaintiff has a judgment in an action for personal injuries, suffered in a fall on a sidewalk, against the owner of the adjacent property and the City of Newark. Both defendants appealed.
It appears that the premises were used as an automobile service station with concrete driveways over the sidewalk to and from the gasoline pumps located near the building. The premises had been owned by an individual who in 1931
rented them by oral agreement to the tenant who since 1935 has conducted this service station. In 1938 the premises were conveyed to the defendant corporation. The plaintiff was employed in a neighboring building. In going to her work the morning of November 28th, 1940, she fell on the sidewalk of the service station at a point where she says there was a depression. She testified that she knew that the depression was there, but says that she did not see it when she fell because of a fall of snow which covered it. There is some testimony that the plaintiff did not fall into the depression nor near it, but slipped and fell on the sidewalk because of the snow and ice thereon. About a year previously the City of Newark dug a trench along the sidewalk of this street for the purpose of laying underground conduits for a traffic control system. Because of the cold weather the work of completing the restoration of the sidewalk, which was of concrete, was not done at that time. The trench at this area was about 6 feet long and 2 feet wide. It was filled in and roughly concreted at the surface, but not made smooth and flush with the surrounding area, there being a depression left of from 1/4 inch to 1 1/2 inches. Why the work was not completed later, does not appear. The tenant, a corporation, was also made a party defendant, and there was testimony that the depression had been slightly enlarged during the intervening year by automobiles being driven over it, going into or leaving the station. We are not concerned, however, with the question of the tenant's responsibility, because the jury found no verdict against it.
Taking up the appeal of the owner first, we conclude that the learned trial judge erred in submitting that issue to the jury. These entire premises were leased. The owner retained no part under its control. It was under no duty to maintain the premises. It made no repairs and was not under contract to do so. There was some testimony of conversations between the president of the defendant corporation and the tenant, indicating a promise to make certain repairs. But that was without consideration and not binding on the corporation. Rosenberg v. Krinick, 116 N.J.L. 597; 186 A. 446. Even if that were not so, the failure of the landlord
to keep his promise does not inure to the benefit of a third party. Reilly v. Feldman, 103 N.J.L. 517; 138 A. 307. The condition of this sidewalk was a nuisance but not created by the landlord and not existing at the time of the leasing; nor was the landlord a party to its continuance. True, the president of the defendant corporation did request the city to abate the nuisance by completing the work, but that fact did not create any obligation or duty on its part. Wasilewski v. McGuire Art Shop, 117 N.J.L. 264; 187 A. 530; Britton v. The Donwin Realty Corp., 123 N.J.L. 540; 10 A.2d 262; Starr v. Adelphia Holding Corp., 124 N.J.L. ...