Summary
In Maday v. N.J. Title Co., 28 A.2d 104 (N.J.), it was said that where there is a right to terminate, the fact of remaining in occupancy on the strength of a promise to repair is a sufficient consideration. It was noted that the terms of the tenancy, in that case from month to month, would have a bearing on the question of the tenant's right to terminate, and it was pointed out that the accident did not occur until more than a month later.
Summary of this case from McKenzie v. EggeOpinion
Submitted May 29, 1942 —
Decided September 18, 1942.
On appeal from a judgment of the Supreme Court, whose opinion is reported in 127 N.J.L. 426.
For the plaintiffs-respondents, Irving Reiken and Louis P. Brenner.
For the defendant-appellant, William Wann and Wilbur A. Stevens.
We are in accord with the view expressed in the opinion filed in the Supreme Court with this exception: The term of the letting is, we think, important. The only testimony on the subject came from the defendant and was that the tenancy was from month to month. The testimony of Mrs. Maday, tenant and plaintiff, was that in the month of January she informed a person who, it is admitted, was the defendant's agent that the ceiling was defective and likely to fall and that she would move unless it was fixed; thereupon the agent asked her not to move and assured her that he would make the necessary repair. Thus we have a consideration for the promise — the right on the part of the tenant to terminate the tenancy before the happening of the accident in March, and the remaining in occupancy on the strength of the promise to repair. There is no proof of the inclusion in the original contract of a duty upon the landlord to repair or of an undertaking that the premises were or should be fit for occupancy; and since the facts do not bring the case within any of the exceptions, the alleged actionable negligence of the defendant to repair must therefore ground in a subsequent contract supported by consideration. Bolitho v. Mintz, 106 N.J.L. 449; Granato v. Howard Savings Institution, 120 Id. 94; Rosenberg v. Krinick, 116 Id. 597 ; Watkins v. Feinberg, 128 Id. 79; Folley v. United Building and Loan Association, 117 Id. 54. Hence the importance of the monthly feature of the letting.
The appellant's brief contains, in addition to the names of the attorney of record and of counsel, the name of one who is neither the attorney of record nor a counselor-at-law. The last mentioned name is appended with the designation — "on the brief." It has no place there and is not noted supra. For affirmance — THE CHANCELLOR, CHIEF JUSTICE, CASE, BODINE, HEHER, PERSKIE, PORTER, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, JJ. 12.
For reversal — None.