Daniel J. Brennan, J.s.c.
This cause is before the court for determination on an agreed state of facts, stipulated between the parties hereto of the following exact tenor:
"In lieu of oral testimony, it is stipulated and agreed by and between the parties that the following constitutes the agreed state of facts:
1. Plaintiff's decedent, Martin Moscowitz, was in possession and control of a two family dwelling located in Middlesex Borough, Middlesex County, N.J., under a contract to purchase same from the defendant Middlesex Borough Building & Loan Association and was executed by the parties on August 19, 1941. Both apartments in the dwelling were rented and occupied by tenants of plaintiff's decedent.
2. The terms for payment of said contract were: 'The balance of said purchase price is to be paid by the Buyer paying the sum
of $20 a month on the second Tuesday of each and every month at the office of the Seller in Middlesex Borough, New Jersey; beginning September 9th, 1941, from which is first to be deducted interest on the unpaid balance of the purchase price at the rate of 5%; second, fire and public liability insurance premiums; the balance to be applied in reduction of the purchase price: The Buyer may make larger payments than the said $20 or may pay off the entire balance at any time before due, and when the amount due on the purchase price is reduced to $1,800, the Buyer shall be entitled to receive a deed of conveyance for the said premises and give back in payment of the balance due a good and sufficient mortgage to the Seller.'
3. The contract further provided in the event of default: 'It is understood and agreed that in case the buyer becomes in arrear with any of the payments herein agreed to be made, including the fire and public liability insurance premiums, taxes and sewer assessment installments, for the period of sixty days from and after the time when the same are due, the Seller may declare all rights of the Buyer to receive a deed under this contract at an end, and in such case the Buyer shall become a tenant of the Seller under an ordinary monthly letting for a rental of $20 per month, and the parties hereto agree that in such case any District Court may have jurisdiction to remove the said Buyer or any one holding under him. The failure of the seller to exercise its option of revocation in case of one or more defaults shall not preclude the exercise of this option in case of later defaults, and the remedy through the District Court herein mentioned shall not preclude the Seller from any other remedy it may have in law or equity.'
4. The terms for payment, under said contract, were strictly followed, and as a result thereof, in due course, a deed was executed and delivered by the defendant, Middlesex Borough Building & Loan Association.
5. On October 6, 1945, Martha Sullivan and her daughter Catherine Cloos formerly Catherine Sullivan, members of the general public, visited the premises which were the subject of the contract referred to in paragraph one hereof, and in the course of said visit, both were injured.
6. Martin Moscowitz died May 4, 1947, and shortly thereafter Rose Moscowitz qualified as his executrix before the Somerset County Surrogate, under his will, in which she was named sole beneficiary.
7. The said Martha Sullivan and Catherine Cloos, formerly Catherine Sullivan instituted an action in the New Jersey Superior Court, Middlesex County, Law Division, to recover damages for personal injuries suffered in the accident on the premises October 6, 1945, and named as defendants therein, The Middlesex Borough Building & Loan Association, Rose Moscowitz, Executrix of the Estate of Martin Moscowitz, deceased, and Rose Moscowitz. The action alleged ...