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Benjamin Wax v. Altshuler

Decided: October 17, 1952.

BENJAMIN WAX, PLAINTIFF-RESPONDENT,
v.
WILLIAM ALTSHULER, DEFENDANT-APPELLANT



McGeehan, Bigelow and Smalley. The opinion of the court was delivered by Smalley, J.s.c. (temporarily assigned).

Smalley

[22 NJSuper Page 231] Defendant appeals from a reduced judgment entered in behalf of the plaintiff by the Passaic County Court. Plaintiff cross-appeals for a reinstatement of the original verdict.

It seems that the trial judge properly characterized this malicious prosecution action when he stated, in his charge to the jury, that the whole thing arose "out of a rather trifling incident, and it has been, perhaps, magnified out of all proportion by reason of the very apparent ill-feeling between the two parties."

Because the attitude of the jury is an important factor in this appeal it will be helpful to summarize the events leading up to the incident complained of, since these were brought out at the trial and were undoubtedly considered by the jury in its determination.

Plaintiff is a sanitary inspector for the Board of Health of the City of Paterson. The premises which are involved here and which are managed by the defendant, are located at 21 Auburn Street in that city and owned by the Elsie Corporation, of which the defendant is an officer.

The ill feelings between plaintiff and defendant seem to have arisen in the latter part of 1950, when a complaint was made against defendant by one of his tenants in the local police court for a sanitary violation. Plaintiff appeared as a witness in this matter. Defendant was found guilty of this violation and given a small fine.

Early in 1951 it appeared that plaintiff made several inspections of the apartment house for alleged violations of the sanitary code, namely, a defective toilet and leaks on the roof. During these inspections defendant contends that plaintiff stamped roughly on the roof and when cautioned by defendant told him that he was out to make trouble for him. Plaintiff, on the other hand, claims that defendant told him that he was making too many inspections and threatened to have him discharged. Each of the parties denied that he has any ill feeling towards the other.

This was the relationship of the parties on February 21, 1951 when the spark was ignited which resulted in this litigation. Plaintiff testified that on that date, in response to a complaint made by one of the tenants concerning a wet ceiling, he was sent by his superior to 21 Auburn Street

to make an inspection of the apartment. Noticing that the ceiling was damp and bulging, he ascended a bench and testified that he merely touched the ceiling with his bare hands when a piece of plaster the size of a half dollar dropped into his palm.

Three witnesses who were present during the incident testified for the plaintiff to the effect that when he touched the ceiling, a piece fell about the size of his palm.

Defendant testified that he was informed of the incident by the tenant, Mrs. Wekar; that he visited the apartment about four or five days later and found a piece of plaster about two feet by two feet broken from the ceiling; that the superintendent, Mrs. Moran, told him that plaintiff had broken the plaster; that he notified Mr. Beery, his attorney, who advised him to make out a criminal complaint against the plaintiff.

Mrs. Moran, the superintendent of the apartment house, testified that she was present when the plaintiff was making his inspection, and that when plaintiff put his hand on the ceiling, a piece of plaster fell off, and that thereupon he put his ...


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