Decided: November 13, 1968.
FREDERICK APPLEGATE, PLAINTIFF-APPELLANT,
JANET WOJACZYK, DEFENDANT-RESPONDENT
Goldmann, Kolovsky and Carton.
[103 NJSuper Page 456]
Plaintiff sued for the balance of rent due under a one-year lease. The defense was constructive eviction. Judgment went in defendant's favor; the trial judge held that the case was a close one, plaintiff had the burden of proof, and he had not sustained it.
Plaintiff's motion for a new trial was denied. His further motion to amend the statement in lieu of record settled by the trial judge (R.R. 1:6-3) was also denied.
The trial judge misplaced the burden of proof. Where constructive eviction is raised as a defense to an action for rent, the burden is upon defendant to prove such eviction. Alexandria Realty Co. v. Whitman, 8 N.J. Misc. 21, 148 A. 12 (Sup. Ct. 1929); cf. Gunther v. Oliver, 97 N.J.L. 376 (Sup. Ct. 1922). The matter must therefore be remanded for a reevaluation of the proofs in the light of that rule.
Reversed and remanded for new findings, to be filed within three weeks. We retain jurisdiction.