Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
[39 NJSuper Page 195] A summarization of the factual circumstances will display the characteristics of this controversy. On and prior to July 7, 1950 one Abraham Dolid was a stockholder, director, and officer of the defendant corporation,
and on the date mentioned discontinued his relationship with the company by the disposition of his capital stock and by the acquisition from the company in return of the title to the factory property occupied by the company, consisting of a four-story and basement building at Nos. 17-23 Nevada Street, together with the premises at Nos. 37-41-43-45 Marshall Street in the City of Newark.
In Association with the conveyance to him, Dolid executed and delivered to the defendant a lease of the property for a term of five years from July 1, 1950 at an annual rental of $4,200, with an option accorded to the defendant to extend its tenancy for an additional period of five years.
It is significant to notice that the provisions of the lease obligated the defendant to pay as additional rent not only the annual taxes, impositions, charges, and levies assessed upon the premises by the city and also the cost of the insurance coverage, but also to fulfill the following obligation expressed in paragraph 13 of the instrument:
"13. The lessee shall make all necessary repairs, interior and exterior, in and about the leased premises at its own expense; but shall not be required to make any structural repairs or alterations."
The lessor, Abraham Dolid, thereafter died and the title to the property passed by testamentary devise to the decedent's widow, Fannie Dolid, the plaintiff herein, to whom the defendant as lessee attorned.
The litigation was originated by the institution of an action by the plaintiff in the Essex County District Court in which she alleged that the defendant failed to make all necessary repairs, interior and exterior, in and about the leased premises at its own expense in performance of its covenant, and that her demand addressed to the defendant to yield to her the possession of the demised premises for that default had been ignored, wherefore she claimed to be entitled to a judgment for possession.
The action was transferred to the Law Division of this court by an order made under the authority conferred by N.J.S.A. 2 A:18-60 et seq. , and a jury verdict rendered
by a vote of ten to two awarded possession of the demised premises to the plaintiff. A new trial was denied by the trial judge. The defendant impugns the conformable judgment.
The defendant proposes on this appeal that the verdict was the ultimate evolution of the foreign influences of passion and mistake, and that it conspicuously exhibits an oppugnancy to the credible and trustworthy evidence. Where, in the consideration of conflicting testimony, as here, the facts found from the evidence by the jury will sustain the verdict, it is not within the exercise of the purely remedial power of the trial judge or of this appellate tribunal to nullify the verdict simply because, in the opinion of the trial judge or in our perception of the state of the evidence, we think that the jury might preferably have reached a different conclusion. Bowen v. Healy's, Inc. , 16 N.J. Misc. 113 (Circ. Ct. 1938), and authoritative citations, affirmed sub nom. Fisher v. Healy's Special Tours , 121 N.J.L. 198 (E. & A. 1938).
Moreover a responsive ear is directed toward the enunciation of our Supreme Court in Hartpence v. Grouleff , 15 N.J. 545, 549 (1954) that the action of the trial court in denying a new trial should not be overthrown unless it is clearly manifest that his determination was without basis in law or fact, or both, with the result that there was a denial of justice under the law. Our appellate ...