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Milk v. Mulcahey

Decided: January 27, 1944.

DOROTHY C. MILK, AN INFANT, BY HARVEY MILK, HER NEXT FRIEND, AND HARVEY MILK, PLAINTIFFS-RESPONDENTS,
v.
JOHN MULCAHEY, DEFENDANT-APPELLANT; JANET HENDRICKSON, AN INFANT, BY LAWRENCE HENDRICKSON, HER NEXT FRIEND, AND EVELYN HENDRICKSON AND LAWRENCE HENDRICKSON, PLAINTIFFS-RESPONDENTS, V. JOHN MULCAHEY, DEFENDANT-APPELLANT



On appeals from judgments of the Supreme Court, whose opinion is reported in 130 N.J.L. 325.

For the appellant, Tumulty & Sepenuk (Wallace P. Berkowitz, of counsel).

For the respondents, Nathan Baker.

PER CURIAM.

The judgments are affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Porter for the Supreme Court.

On the issue of negligence, the essential question argued is whether the infant plaintiffs occupied the status of invitees at the time when the mishap occurred; and this, in turn, depends upon whether the tenancy had been lawfully terminated

so as to render the tenant's continued possession wrongful and his status at the time of the accident that of a trespasser. We concur in Mr. Justice Porter's disposition of this question.

It is not contended that, on this hypothesis, there was no evidence of a failure to exercise reasonable care in the performance of the duty owing to the infant plaintiffs; and there is therefore no occasion to determine whether, as the Supreme Court found, that "it was error to have found for the defendant in the absence of any proofs of lack of negligence on his part * * *."

The judgment is accordingly affirmed.

For affirmance -- THE CHANCELLOR, PARKER, BODINE, HEHER, COLIE, DEAR, WELLS, RAFFERTY, THOMPSON, DILL, JJ. 10.

For reversal -- ...


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