Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiffs sued defendant landlord for damage to their personal property when water entered the basement of the leased premises during hurricanes "Edna" and "Connie" on September 11, 1954 and August 13, 1955, respectively. There was a jury trial, and at the close of all the testimony the Law Division judge granted defendant's motion for involuntary dismissal as to all counts of the complaint. Judgment of involuntary dismissal, with prejudice, was entered in defendant's favor, with costs. Plaintiffs appeal.
Plaintiffs have not included in their brief "a concise chronological statement, in narrative form, of all the facts which
should be known in order to determine the points in controversy," as required by R.R. 1:7-1(d), 2:7-1. Defendant supplies the deficiency in its brief. We find the statement to be a full and fair resume of the operative facts, and plaintiffs concur therein.
Defendant is the owner of 141-149 Cedar Lane, Teaneck, N.J., consisting of five stores with separate basements, the foundation being constructed of cinder block. In September 1950 plaintiffs Max Bauer and Irving Eisen, doing business as Bergen Medical Supply Co. (plaintiff Leon Bauer joined the firm in February 1951), entered into a lease with defendant for 147 Cedar Lane. They stored their merchandise in the basement on platforms at least seven inches high -- a practice followed when, as will shortly be noted, they also leased the adjoining store at No. 145. None of the merchandise on these platforms was ever damaged by water except at the time of the two hurricanes. Plaintiffs testified there was dampness and wetness in the cellar of No. 147 from the very first, the water coming from the north or rear foundation wall. They notified Mr. Then, the landlord's president and agent, of the condition, and he arranged to have one Krais examine the premises and suggest what could be done. Krais recommended that the north wall, as well as ten feet of the west wall immediately adjoining, be given a coat of waterproofing compound. This was done, but according to plaintiffs it did not improve the condition. Water seepage and dampness continued.
On May 1, 1952 plaintiffs entered into a lease for not only No. 147 but the adjoining store at 145 Cedar Lane, for a term of five years, the premises to be used and occupied as a retail store for the sale and rental of surgical supplies, drugs and professional office equipment, and for a clinical laboratory. We reproduce the two lease provisions pertinent to this appeal:
"14th: It is expressly agreed and understood by and between the parties to this agreement, that the Landlord shall not be liable for any damage or injury by water, which may be sustained by the said Tenant or other person or for any other damage or injury
resulting from the carelessness, negligence, or improper conduct on the part of any other Tenant or Agents, or Employees, or by reason of the breakage, leakage, or obstruction of the water or soil pipes, or other leakage in or about the said building."
"34. The landlord agrees to waterproof the basement of No. 145 Cedar Lane."
The lease was on a standard printed form, except for paragraph 34. The testimony was that during negotiations for the lease plaintiff Max Bauer asked Then if defendant would waterproof the north basement wall of No. 145 to insure against dampness, just as had been done in No. 147. He agreed and, at Bauer's request, inserted the waterproofing clause in the lease.
In July 1952 defendant had Krais paint the basement wall of No. 145 with the same waterproofing compound he had used before. The cellars nonetheless continued to be damp and wet after each rain. The worst condition occurred at the end of 1952 when some three to four inches of water covered the basement floors. It came into No. 145 from No. 143, through the base of the cellar wall separating the stores; some seeped down ...