On appeal from the Monmouth County Court of Common Pleas.
For the plaintiffs-appellants, Abraham R. Klitzman (Theodore D. Parsons, of counsel).
For the defendant-appellee, Durand, Ivins & Carton (J. Victor Carton, of counsel).
Before Brogan, Chief Justice, and Justices Bodine and Colie.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The plaintiff, who brought an action for personal injuries resulting from falling in the common hallway of an apartment house, appeals from an adverse judgment. The defendant in the case was the owner of the property. The learned trial court directed the jury to return a verdict in favor of the defendant on the theory that the possession and control of the property in which the accident occurred was at that time lodged in the lessee. The plaintiff's contention on this phase of the case was that the
lease was not a bona fide instrument and therefore whether the defendant-owner had relinquished control over the premises, and particularly the common hall and stairway, was a fact issue for the jury. The court declined to accept this view and directed the jury accordingly.
The plaintiff Betty Weinstein called on a tenant in the apartment house, Mrs. Schafman, a dressmaker. She left at about six-thirty in the evening and, as she approached the stairway on the second floor, caught her shoe in some nails that protruded from the floor of a hallway and fell down the stairs.
Taking up the matter which prompted the court to direct a verdict for the defendant, it seems that the defendant, Mrs. Churna Shapiro, record title holder to the premises, took title on April 8th, 1936. The grantors were her parents, Joseph H. and Tilly Friedman. After title passed the Friedmans continued to live on the premises in the sixteen room, one family house, later converted by them into an apartment house for the accommodation of three tenants. The Friedmans retained one apartment and rented the other two. The alteration of the building was undertaken on or about July 10th, 1939, at an estimated cost of $3,500. Shortly prior thereto, that is, on April 15th, 1939, Mrs. Shapiro had entered into a lease with her mother, Mrs. Friedman, whereby she rented the property to her for a period of six years at a rental of $30 a month. The lease, which was not recorded, provided that the tenant was permitted to make alterations "and to sublet two apartments which are to be remodeled at the expense" of the lessee "at any time during the term of this lease * * *." The appellants consider that sufficient emerged from cross-examination of defendant's witnesses to raise a question of fact on the issue of whether the lease was legitimate and effective and whether the owner had relinquished control completely. There is no direct evidence that the lease was other than a normal business arrangement between the parties.
The witness, Mrs. Schafman, by deposition, testified that she had lived in the premises for two years; that she was a dressmaker and that she thought the lessee, Mrs. Friedman,
owned the property; that the lessee had collected the rents and had complete charge of the house, including the hallways and stairs. The defendant, Mrs. Shapiro, testified to having acquired title to the property in 1936, by deed from her father and mother; that the lease was executed in 1939; that she gave her mother the right to convert the dwelling into a three family apartment house; that the changes were made at her mother's expense and that since the inception of the lease she exercised no supervision or maintenance over the premises whatsoever. On cross-examination she said that she paid a small sum for the deed; that she didn't remember the exact amount but that it was paid in cash; that her mother remained in the premises as a tenant and it was not until three years later that she entered into the written lease; that she paid the taxes by giving her mother the amount in cash, explaining that she lived in Lakewood and it was not convenient for her to come to Belmar, where the tax office was located. The same arrangement prevailed for the payment of water bills and insurance; that she never made any repairs to the house; that the lease was prepared by her brother, Isidore J. Friedman, a member of the bar of this state. She reiterated her statement that she didn't remember the amount of the consideration paid for the deed; that from ...