Goldmann, Freund and Foley. The opinion of the court was delivered by Freund, J.A.D.
Defendant Issac Frishman appeals from a judgment of the Ocean County District Court awarding plaintiff Selma Levin, his former landlord, $800 for alleged damages to the leased premises while defendant was a tenant, and $25 for the balance of rent due under the lease.
The parties have submitted an agreed statement in lieu of record. R.R. 1:6-2. According to this statement, together with the exhibits received in evidence, plaintiff on May 5, 1959, by written agreement, rented to defendant a seven-room dwelling at Lakewood, N.J. for the term of one year commencing on May 15, 1959, at the annual rental of $1,800, payable in equal monthly installments of $150. During the term of the tenancy a fire of undetermined origin occurred in the vicinity of the kitchen stove and caused damage to the interior of the premises. Plaintiff
testified that she did not receive notice of any fire or damage until she visited the property after the expiration of the term, when the premises had become vacant. Plaintiff produced a contractor who testified as to the reasonable value of the repairs, which he estimated to be in excess of $400. At the close of plaintiff's case defendant moved to strike all testimony regarding the fire and the estimated cost of repairs for the reason that there was no allegation or proof that the fire was caused by the carelessness, negligence or improper conduct of defendant. The motion was denied.
Defendant testified that he had no knowledge as to how the kitchen fire started, although it occurred in or about October or November 1959, at a time when defendant and his wife were away from the house. When they returned in the afternoon they found the kitchen filled with smoke from a fire in the kitchen stove. He further testified that the stove had not been operating properly, and on at least one occasion it had been necessary to have a repairman make repairs because the stove controls were out of order. Defendant and his wife moved about a month later and sublet the premises to some other tenant. With respect to the balance of the rent, defendant explained that he had not paid the final $25 due under his lease since he and plaintiff had agreed to a reduction of rent in that amount. There was no testimony indicating that defendant or his subtenant was ever involuntarily deprived of the use and enjoyment of the premises.
The lease contains two provisions relevant to defendant's liability for fire damage. Under the first provision the tenant agreed:
"* * * to quit and surrender the premises, at the expiration of the said term, in as good state and condition as they were in at the commencement of the term, reasonable use and wear thereof and damages by the elements excepted."
The second provision states:
"* * * it is further agreed between the parties to these presents, that in case the building or buildings erected on the premises hereby leased shall be partially damaged by fire, the same shall be repaired as speedily as possible at the expense of the said party of the first part [plaintiff-landlord] ; that in case the damage shall be so extensive as to render the building untenantable, the rent shall cease until such time as the building shall be put in complete repair; but in case of the total destruction of the premises, by fire or otherwise the rent shall be paid up to the time of such destruction, and then and from thenceforth this lease shall cease and come to an end; provided, however, that such damage or destruction be not caused by the carelessness, negligence, or improper conduct of the party of the second part [defendant-tenant], his agents or servants." (Emphasis added)
The sole question raised on this appeal is whether plaintiff was required to bear the burden of proof that the damage to the leased premises was caused by the "carelessness, negligence or improper conduct" of defendant.
The first provision of the lease, requiring the tenant to surrender the premises in as good state and condition as they were at the commencement of the term, standing alone, would appear to obligate the tenant to repair the fire damage. Schultz v. Kneidl , 56 N.J. Super. 575, 579 (Law Div. 1959), affirmed 59 N.J. Super. 382 (App. Div. 1960); Pivnick v. Seaboard Supply ...