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Bertsch v. Small Investments Inc.

Decided: May 15, 1950.

MARGUERITE BERTSCH, PLAINTIFF-APPELLANT,
v.
SMALL INVESTMENTS, INC., A CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT



On appeal from Hudson County Court, Law Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld and Burling. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J.

Wachenfeld

The appellant sued to recover the cost of repairing and reconstructing a parapet wall on the roof of a building at 3501 Hudson Boulevard, Union City. The property was the subject of a contract for sale between the parties made in May, 1948. The purchase price was $35,500 and the contract provided the conveyance was to be subject to "tenement house violations, excepting those of a structural nature."

When title closed on July 15, 1948, the Board of Tenement House Supervision report had not yet been received so it was agreed to close title with the provisions as to the tenement house violations inserted in the deed and a separate written agreement was entered into stipulating the provisions as to the structural violations should survive the contract. Afterward, the appellant received a report from the Board of Tenement House Supervision specifying "parapet on roof out of plumb; level up same right street to yard court."

Respondent was informed of the report and asked to make the repairs on the ground that the condition was a tenement

house violation of a structural nature. It refused to repair the parapet and was subsequently advised an agreement had been entered into between the appellant and a contractor to replace the wall for the sum of $6,800. The respondent still denied liability and the appellant brought this action to recover the cost of the work done.

The respondent asserts the work in question was not a repair of a structural tenement house violation but was occasioned by age and use of the building and came within the provision of the contract that the property was to be sold "as is." It contends further that, even had the condition of the parapet constituted such a violation, the proper remedy would have been rescission of the contract since no warranty of conformance to the provisions of the Tenement House Act was expressed or implied in the deed. No attempt was made to rescind the contract.

The appellant produced as a witness the chief inspector of the Board of Tenement House Supervision, who testified the replacing of the wall was a "structural job" but admitted the regulations of the Board made no provision relating to parapets. Others of the appellant's witnesses testified that the rebuilding was a "structural job" or "structural building work." An architect with years of experience testified to the contrary for the defendant.

The court below sat without a jury and, in deciding the issue, said:

"I find that the said condition of the wall did not constitute a tenement house violation of a structural nature, and not one which was a structural violation in the contemplation of the parties. The plaintiff did not move to rescind the contract, but instead elected to retain the property, after ascertaining from the Board of Tenement House Supervision that there was a violation which she deemed to be a structural one. There was no agreement between the parties that in the event there was a structural violation she was to retain the property and defendant was to be responsible for the cost of the repairs."

The trial judge also found the appellant entered into the contract with knowledge as to the ...


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