On appeal from the Superior Court, Law Division.
For affirmance in toto -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For reversal as to Vegro Realty Company, affirmance as to Andrew and Walter Golda -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J.
[6 NJ Page 72] The plaintiff sought to recover damages for injuries caused by the falling of a glass window. In June, 1946, as she was walking on a public sidewalk past the building known as 397 Myrtle Avenue, Irvington, a plate glass window, used by the tenant for the display of canned goods,
fell from the building and injured her. It had been cracked and a piece missing at the bottom for several months.
The property was owned by the defendant Vegro Realty Company, a New Jersey corporation, which in December, 1944, had leased the store in question to one Henry Golda by a written lease for the term of two years. The lease was marked in evidence and contained the following provisions:
"The tenant is also to keep the plate glass insured at his own expense. The landlord is to pay for the water and the Tenant is to supply his own heat from a separate heater which is in the cellar and connected with his store.
"In the event of any default in any of the covenants and conditions of this lease, the Landlord at its option, may terminate the lease and re-enter and re-possess the premises. The Landlord is to do only structural repairs. The Tenant is to take care of the sidewalk, summer and winter, by keeping it clean and in good order."
The pretrial order named the tenant and included the specific denial of Andrew and Walter Golda that they were the tenants of the store in question or were in control or operation of it. The plaintiff nevertheless sought to prove her allegation made in the complaint that Andrew Golda and Walter Golda, individually and trading as Golda's Market, owned, operated and controlled the store.
At the close of the plaintiff's proof, the trial court entered a judgment of dismissal in favor of all the defendants. From the judgment so entered the plaintiff appealed to the Appellate Division of the Superior Court, the cause being certified here on our own motion.
The plaintiff asserts that when the owner of premises abutting on a public street leases them to others, with a covenant to make structural repairs, there continues in him a duty to maintain the premises in a safe condition for the protection of persons lawfully using the adjacent sidewalk. She further contends the occupiers of the premises were primarily liable for her injuries and there was error in the dismissal of her action against them. It is alleged also the trial court was in error in ruling that the large plate glass window was not a structural part of the building and in excluding certain expert
testimony and evidence of subsequent repairs made by the landlord.
A landlord is not responsible for injuries received by a person walking upon the public sidewalk in front of premises leased to and occupied exclusively by a tenant when the injuries are caused by a defect in the demised premises which occurred during the term of the lease. Handlon v. Copestone Temple Ass'n., 106 N.J.L. 362 (E. & A. 1930); Hammer v. Vanderbilt, 116 N.J.L. 574 (Sup. Ct. 1936); Wright v. A.J.M. Holding Co., 130 N.J.L. 239 (Sup. Ct. 1943).
The plaintiff, admitting the premises in question had been leased by the landlord, points to the covenant whereby he agreed to make "structural repairs" and contends he thereby retained control over the premises and assumed responsibility, citing Restaino v. Griggs Motor Sales, Inc., 118 N.J.L. 442 (Sup. Ct. 1937). There the lease provided:
"The tenant does hereby covenant to make all necessary repairs to the interior of the demised premises, during the term of this lease, including all plumbing, painting, store maintenance and the replacing of all broken glass, except showroom plate glass. Should said repairs become necessary because of structural defects, they shall be made by the landlord."
The court, however, did not construe the term "structural defects" in that case, holding it was not necessary to decide whether the provisions of the lease imposed the duty of maintenance or repair of the window in question upon the landlord in order to determine the tenant's liability to a third person. It was the duty of the tenant to keep the demised premises in a safe condition and an agreement by the landlord to make repairs did not relieve him from this duty. The opinion cited McKeown v. King, 99 N.J.L. 251 (E. & A. 1923), where it was held that while the provisions of the lease fixed the obligation as between the landlord and tenant, nevertheless no provision of the lease ...