Eastwood, Jayne and Clapp. The opinion of the court was delivered by Eastwood, S.j.a.d.
The plaintiff-appellant (hereinafter referred to as "tenant"), and defendant-respondent (hereinafter referred to as "landlord"), entered into a written lease for premises consisting of two buildings, one a tayern and restaurant, and the other a dwelling house. One of the provisions of the lease required the landlord to keep the demised premises in good repair at all times during the term thereof.
The tenant instituted an action against the landlord in the Sussex County District Court to recover the sum expended by it in making certain repairs, alleging that the landlord had violated the covenant to repair, notwithstanding its demand for certain necessary interior repairs to be made.
The action was tried by the court and a jury, resulting in a divided jury verdict (10 to 2) of no cause of action. The tenant appealed from the ensuing judgment.
It is the tenant's contention that: (1) the verdict should be set aside and a new trial granted because it did not have a fair trial before an impartial jury; (2) the verdict was against the weight of the evidence; (3) the court erroneously admitted testimony as to certain repairs made by the landlord, other than those involved in the litigation; and (4), the court erred in admitting incompetent opinion evidence by an alleged expert.
In our opinion, the only question requiring any extensive discussion is that heretofore denominated as the first ground of appeal.
The tenant contends that when the jurors were interrogated as to whether they knew the parties or had any personal
knowledge of the subject matter of the suit, or whether there was any other reason why they might be subject to challenge, two jurors failed to disclose the fact that they had been members of a jury in a previous case between the same parties, involving the same covenant; that these two jurors voted in favor of the verdict returned in the case at bar; and another juror failed to disclose that her husband had also sat on the jury in the trial of the prior action.
The jurors were not examined separately on their voir dire , but the interrogation was made to them as a unit. To present the picture as it existed at the trial, we quote from the record the omnibus question submitted to the jurors and the colloquy connected therewith, viz.:
"MR. MADDEN: Ladies and gentlemen, this suit is a suit for an alleged violation of a covenant to repair. The suit is by the Springdale Park Corporation, which is a tenant of John Andriotis, and the tenant is suing the landlord, claiming that the landlord has violated his agreement to keep the premises in good repair. Are any of you familiar with the situation between these two parties with reference to these repairs? Does anybody have any personal knowledge of it? Have any of you any personal knowledge of the parties? I think you are all from around here, and I know that a good many of you know me, and you know Mr. Sherred, and probably know Mr. Andriotis, and perhaps know George Tsitsiragos, the president of the Springdale Park Corporation. Do any of you know the parties, either Mr. Andriotis or Mr. Tsitsiragos? Anyone at all? Mr. Kymer, you do? Do you feel that your knowledge of these parties is such as to prejudice your verdict that might be rendered in this case?
THE JUROR: No, I don't think so.
MR. MADDEN: In other words, you could decide it fairly according to the evidence, regardless of ...