Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Eastwood, S.j.a.d.
On July 12, 1950 Edan Shops, Inc., entered into a lease agreement with the defendants Morton Goldstein and Robert Goldstein (hereinafter referred to as the "landlords") for premises situate in Union City, New Jersey, for the term commencing July 15, 1950 and ending February 28, 1954, at the monthly rental of $375, payable on the first day of each month in advance. The tenant deposited with the landlords $750 as security.
On January 28, 1952 plaintiff was designated as assignee for the benefit of creditors of the tenant.
The appellant contends that the landlords made an unlawful, unreasonable and excessive distraint upon the goods and chattels of his assignor in violation of an oral agreement made between Sidney Zaiden (who had purchased his associate's interest in the business of Edan Shops, Inc.) with the landlords, whereby it was agreed that payment of the monthly rent might be delayed two or three weeks after it became due and payable. The distraint in question was made on January 25, 1952 for the unpaid rent due on January 1, 1952.
The appellant argues that the trial court erred in holding that (1) the proofs failed to disclose a valid agreement to extend the monthly rent payments; and (2) in its instruction to the jury that in determining whether the distraint was excessive, the jury could take into consideration what the goods would have brought "at auction" or "under the hammer."
The judgment from which this appeal stems directs that a judgment of dismissal be entered in favor of defendant John Bertone, and against the plaintiff Allan L. Tumarkin,
assignee, &c., on the second count for malice only; of no cause of action in favor of the defendants Morton Goldstein, Robert Goldstein and John Bertone, in pursuance of the verdict of the jury; and judgment of involuntary dismissal in favor of the plaintiff and against the defendants-landlords on their counterclaim, with costs in favor of the defendant John Bertone, only.
Considering the first ground of appeal, it is apparent that it embraces the question as to the landlords' right to distrain. The plaintiff claims that an oral agreement was entered into on August 3, 1951 with his landlords, acting by Morton Goldstein, to accept current rent which, under the lease was due on the first of each and every month, at any time during the month. Mr. Zaiden, who became the sole owner of the corporate business by purchasing the interest of his associate, one Goldman, testified that the agreement was in the early part of 1951 and, in discussing the proposed purchase of his associate's interest with Mr. Morton Goldstein, told him that he would like to take over the corporate business because it was not paying two men to be in the store, that he needed capital and that
"* * * I said I will be pressed for a while now being that I haven't got the working capital. So if I should be held on my rent a bit I don't want you to squeeze me or hurt me in any way. So he sort of nodded and said, 'Well, we can get along as long as you, within the next two or three weeks that your rent is due, you pay it and it will be all right.' At that we parted and sort of agreed on that particular way." (Italics ours)
and the plaintiff relies on the aforementioned testimony to establish an oral agreement in modification of the lease. The defendant denies that any such agreement was made. Later, on cross-examination by defendants' counsel, stated further:
"Q. Mr. Zaiden, I understand that you had an agreement with Mr. Morton Goldstein that you could pay rent any time during the month as long as you paid it by the end of the ...