Allen v. Fisher

• Decision Date: 17 June 1901
• Parties: ALLEN v. FISHER.
• Court: New Jersey Supreme Court

49 A. 477

66 N.J.L. 261

ALLEN

v. FISHER.

Court of Errors and Appeals of New Jersey.

June 17, 1901.

(Syllabus by the Court.)

Error to supreme court-Action by Edward H. Allen against.

Charles W. Fisher. Judgment for plaintiff.

Defendant brings error. Affirmed.

George A. Bourgeois, for plaintiff in error.

William I. Garrison, for defendant in error.

GUMMERE, J. This is an action of ejectment instituted by the plaintiff in error, the owner of a certain hotel property situated in Atlantic City, against the defendant in error, who is in possession thereof under 8 written lease for a term of five years, dated the 15th day of July, 1898. During the latter part of the summer of 1899, the building on the premises was partially destroyed by a lire, which occurred without the fault of the lessee. The building has not since been repaired, and from that time to the commencement of this suit no rent has been paid by the lessee, although, by the terms of the lease, he covenanted to pay the sum of $200 as rent on the 1st day of July, 1900, and a like sum as rent on the 5th day of August in the same year. The action is based upon the failure of the lessee to pay rent in accordance with his covenant. At the close of the trial below, a verdict was directed in favor of the defendant, and this writ is sued out to review the correctness of that instruct tion. By section 1 of the supplement of March 5, 1874, to the "Act concerning landlords and tenants" (1 Gen. St p. 1923, § 35), it is provided that, "whenever any building, erected on leased land, shall be injured by fire, without the fault of the lessee, the landlord shall repair the same as speedily as possible, or, in default thereof, the rent shall cease until such time as such building shall be put in complete repair: provided always that this section shall not extend to or apply to cases where the parties have otherwise stipulated in their agreement of lease." The propriety of the action of the trial court, therefore, in directing a verdict for the defendant, must depend upon whether the parties have, in their agreement of lease, so stipulated that their respective rights and obligations are not regulated by the statutory provision quoted. The only parts of the lease which have any bearing upon this controversy are as follows: "Sec. 3. That the lessee will not knowingly do or commit, or willingly suffer to be done or committed, any act or thing contrary to the conditions or stipulations of the policy or policies of insurance on the premises; and that he will peaceably deliver up the premises hereby demised at the end of the said term, in the same good order and condition that he received the same, reasonable wear and tear and damage by accidental fire alone excepted." "Sec. 17. All repairs are to be made and paid for by the said tenant and lessee, including water rent; and it is expressly stipulated, understood, and agreed that the said lessor shall be exempt and relieved from the making of any repairs, alterations, additions, or improvements during the continuance of this lease, the said lessee hereby covenanting to make and do the same." The covenant of the lessee contained in the seventeenth section of the lease, standing alone, requires him to make all repairs to the premises, including those made necessary by their partial or total destruction by fire. Wood, Landl. & Ten. §§ 369, 370, and cases cited. The third section of the lease...