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Hoogesteger v. Agnew

Argued: April 20, 1944.

ANNA HOOGESTEGER ET AL., PLAINTIFFS-RESPONDENTS,
v.
ANNA M. AGNEW, DEFENDANT-APPELLANT



On appeal from a judgment of the Passaic District Court.

For the defendant-appellant, Andrew Foulds, Jr.

For the plaintiffs-respondents, Feder & Rinzler.

Before Justices Case, Donges and Porter.

The opinion of the court was delivered by

DONGES, J. Plaintiff Anna Hoogesteger sued to recover damages for injuries claimed to have been inflicted through the negligence of defendant. Her husband sued per quod. The suit is based upon the alleged failure of defendant to make necessary repairs, and upon the allegation that defendant violated her duty in improperly, carelessly and negligently constructing the porch and porch rail, in consequence of which the porch rail broke and gave way, causing the female plaintiff to be thrown from the porch to the ground and thereby injured. It was a two-family house and plaintiffs occupied the second floor as tenants of the defendant. Plaintiffs had verdicts and defendant appeals.

Appellant argues that there was no agreement on the part of the defendant landlord to maintain the porch railing; that, if defendant agreed to paint the outside of the building,

including the porch, there was no consideration for the promise; that the failure to paint was not the natural and proximate cause of plaintiff's injuries; and that plaintiff assumed the risk of injury.

In our opinion, a question of fact was presented by the proofs in this case.

Plaintiff Anna Hoogesteger testified that when she entered into the agreement of letting with defendant, the defendant expressly and clearly agreed, as part of the letting, that necessary repairs would be made by defendant. She testified: "I asked her [defendant] about certain repair work in the house before I took the rooms and she said that would be repaired, and if there were any other repairs to let the agent or supervisor know about it."

"Q. State as specifically as you can, what was said? A. She said she would take care of them.

Q. What did she say would be done with regard to repairs? A. To let the agent know of anything that should be fixed; I should let him know as I couldn't get in ...


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