On appeal from the District Court of the Second Judicial District of the County of Essex.
For the plaintiff-respondent, Fast & Fast (Herman L. Fast).
For the defendant-appellant, Theodore McCurdy Marsh and Waugh, Torppey & Consodine.
Before Justices Case, Bodine and Perskie.
The opinion of the court was delivered by
CASE, J. Plaintiff sued to recover damages caused by the alleged failure of the defendant to provide heat, in accordance with its contract, in a building owned by another and partly tenanted by plaintiff. Judgment went for the plaintiff, and defendant appeals. Two points are presented: First, that plaintiff had no right of action for the reason that the contract was not made for his benefit; second, that the alleged omission was not a violation of the contract.
Defendant is the owner of a building, known as the Kent Garage, fronting on Washington Street, Newark. The building is partly on lands owned by the defendant and partly on leased lands owned by one Bierman. Adjoining is a building owned by Bierman and occupied by tenants; and plaintiff as
tenant occupies the ground floor of the last mentioned building for tavern purposes. The central heating plant was in the defendant's building. On December 28th, 1940, Bierman and the defendant entered into an agreement, sufficiently supported by consideration, which contained, among other provisions, the following recitals and undertakings (italics inserted): "Whereas, Kent has permitted Bierman to use the halls and stairways on the premises of Kent as a means of access to the second floor of the property of Bierman and has supplied heat and access to water and sewer to Bierman and his tenants; and Whereas, both Bierman and Kent desire to enter into a new arrangement for the continuance of the foregoing arrangement; Now, Therefore, * * * Kent hereby agrees during the term of this license, (a) to permit Bierman, his tenant, licensees and invitees, free access to and from the second floor of the building of Bierman in and through the entrance hall and stairway located on the premises of Kent; and (b) to supply during the months from October 1st to May 31st, inclusive, of each year covered by this agreement reasonable and necessary heat for the first and second floors of the aforesaid abutting premises owned by Bierman * * *." Kent furnished heat to the Bierman building until six o'clock P.M. on week days and until noon on Saturdays, but on Sundays, Saturday afternoons and after six o'clock in the evening furnished no heat beyond that necessary to prevent the freezing of water pipes. Plaintiff operated his place of business until two or three o'clock in the morning and was put to expense, for which he sues, in the supplying of heat necessary for the comfort of his guests. The lease agreement between plaintiff and Bierman contained these provisions:
"The parties hereto understand that heat for the premises hereby leased is obtained from the heating plant maintained by, and entirely under the control of, the owner of premises adjoining the premises hereby leased, and that the 'Landlord' herein named, has an agreement with the owner of said adjoining premises for heat to be supplied from the aforesaid heating plant to and for the premises hereby leased. * * * The parties hereto therefore hereby agree that the Landlord shall not be liable to the Tenant in the event that the aforesaid heat,
water and sewage facilities, or any of them, are interrupted or terminated through no default of the Landlord who has a working agreement with said adjoining owner for the continuance of said facilities. * * *
"The aforesaid written license is hereby expressly made a part of this lease, and this lease is made subject thereto and to all the terms and conditions therein set forth, said license agreement being recorded in the Essex County Register's ...