On appeal from the Passaic County Court of Common Pleas.
For the plaintiff-appellant, Charles Halsted.
For the defendants-respondents, Peter Calcia.
Before Case, Chief Justice, and Justice Burling.
The opinion of the court was delivered by
BURLING, J. This is an appeal from a judgment entered in the Passaic County Court of Common Pleas resulting from the verdict of a jury in the defendants' favor upon their counter-claim and of no cause of action upon the plaintiff's complaint. The defendants let in May or June, 1944, one half of the basement premises 460 Totowa Avenue, in the City of Paterson, to the plaintiff by an oral lease for a term of one month and thereafter on a month to month tenancy.
Plaintiff, as owner and landlord, instituted the action against the defendants as tenants. The defendants allegedly vacated the premises in question in July, 1946, leaving the premises, particularly the floor, in a damaged condition. At the trial, the plaintiff adduced testimony that the floors were defaced by the use of fluids and coloring matter used by the defendants in their photo-engraving business, to the extent of $2,700. The defendants filed an answer joining issue on the complaint and also filed a counter-claim against the plaintiff for having unlawfully and wrongfully, on or about July 1st, 1946, deposited certain bales of merchandise in part of the premises which were rented to the defendants, and thereby interfered with the enjoyment of the premises and the pursuit of its business and caused a suspension thereof, resulting in a constructive eviction.
At the trial the defendants testified that the plaintiff had deposited, without permission of defendants, certain bales of merchandise belonging to plaintiff in the aisles of the defendants' rented space on or about July 15th, 1946. The counter-claim alleged plaintiff's deposit of bales on July 1st, 1946, instead of July 15th, 1946. Defendants further testified that the lodging of the bales had put a certain photo-engraving machine out of order for two weeks and that this machine was necessary in their business, thereby causing them loss of profits and damage to machinery and equipment.
The appellant filed nine grounds of appeal. These grounds of appeal relate to rulings of the trial court to which no exceptions were taken excepting in one instance relating to the charge. That instance related to the charge upon the subject of damages. It is fundamental that unless the attention of the trial court is called to the fact that counsel conceives the court's ruling to be in error, which attention is called by timely objection and the taking of an exception to the action of the court, the matter cannot be taken advantage of on appeal. Benz v. Central Railroad of New Jersey (Supreme Court, 1912), 82 N.J.L. 197; affirmed (Court of Errors and Appeals, 1912), 83 Id. 780.
On the measure of damages, the trial court charged as follows:
"The Leonard Meys Company says, I repeat, that was not done, but they were compelled, by reason of the actions of the Slater Realty Corporation, to vacate the premises prior to their desire to get out, because the premises or the property that they purchased was not in condition for use for the business for which they bought it. They say they were damaged in their business because of the action of the Slater Realty Corporation; they say they were damaged in loss of profits, loss of business, for the months of July and August; and they also say that they lost business. You heard the testimony of the witnesses. They claim these damages because of their being forced to vacate their premises, the property that ...