Bauer v. 141-149 Cedar Lane Holding Co.

• Decision Date: 15 October 1956
• Docket Number: No. A--546,A--546
• Citation: 125 A.2d 884,42 N.J.Super. 110
• Parties: Leon BAUER, Max Bauer and Irving Eisen, etc., Plaintiffs-Appellants, v. 141--149 CEDAR LANE HOLDING CO., Inc., a corporation of New Jersey,Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 110

42 N.J.Super. 110

125 A.2d 884

Leon BAUER, Max Bauer and Irving Eisen, etc., Plaintiffs-Appellants, v. 141--149 CEDAR LANE HOLDING CO., Inc., a corporation of New Jersey,Defendant-Respondent.

No. A--546.

Superior Court of New Jersey Appellate Division.

Argued Oct. 5, 1956.

Decided Oct. 15, 1956.

Herbert A. Chary, Hackensack, argued the cause for appellants.

George F. Losche, Hackensack, argued the cause for respondent (Losche & Losche, Hackensack, attorneys).

Before Judges 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 re sume 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 #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 the rear walls of Nos. 145 and 147, and a little entered No. 147 through the wall separating it from No. 149.

In March 1953 a sump pump was installed in the cellar of No. 149, occupied by another tenant, but whether this was done at the instance of Max Bauer or the tenant is not clear from the record. The installation was by one Greco, an independent contractor. At about this time Rainbow Cleaners, the tenant in No. 143, had a sump pump installed in its cellar, defendant paying the bill. Despite all this, there was still water in the cellar, but the worst condition encountered (until the hurricanes came) was no more than half an inch or so.

The next event of note was the macadamizing of the dirt-surfaced area in the rear of the five stores in June 1954. The tenants had asked defendant to do something about making the lot usable for parking. Mr. Then gave the work to Di Torento Bros., who graded the lot, raised the sills in back of the stores, filled the areaways of Nos. 145, 147 and 149, installed a dry well to the rear of the area, ran an underground drain connecting the leader on the northwest corner of the building (No. 149) to the storm sewer in the street, and then macadamized the lot. It had also been planned to close up the areaway in back of No. 143, but the tenant, Rainbow Cleaners, would not give permission because fire department regulations required that it be kept open on account of the dry cleaning machinery and boiler on the premises.

Plaintiffs' basement continued to be wet and damp, and they told Then about this at the close of August 1954. He found himself at a loss to explain how water could get in after all that had been done, but volunteered to do what he could to straighten out the situation. He at once wrote to three waterproofing contractors to examine the premises, tell him what could be done, and submit estimates.

Before the estimates could come in, hurricane 'Edna' struck. Plaintiffs had warning of the imminent storm the day before, and hastened to place the merchandise stored in the cellar on the platforms, where water had never before reached. Heavy rains during the night flooded the entire macadamized area. The waters streamed down the areaways of Nos. 141 and 143 and the vent behind No. 143 into the cellars, worked their way through the wall of No. 143 into the cellar of No. 145, and overflowed the platforms, reaching a depth of three feet and damaging the merchandise.

Shortly after the storm defendant had Modern Plumbing Company, which had submitted a favorable estimate, put a gully along the north wall of the cellars, running from No. 143 through No. 149, and install a sump pump in No. 147 to take the water out of the gully.

On August 12, 1955 plaintiffs, warned of impending storm, took the same precautions as they had with hurricane 'Edna.' Again they placed their merchandise on the cellar platforms. On August 12 and 13 hurricane 'Connie' deluged the area with a total of over six inches of rainfall. The waters flooded the macadamized area and entered plaintiffs' cellars in the same manner as before, to a depth of two and one-half to three feet, with resultant damage to the merchandise.

Plaintiffs' waterproofing expert testified that he knew of no waterproofing paint that would work, that only waterproof plaster would do the job, and that the various steps taken to alleviate the condition--sump pumps and all--were not adequate to keep water from entering the basement. Another expert stated that water flowing through the leaders on the rear of the stores would run toward the building instead of away from it; that the pitch at the west end of the macadam area was toward No. 149, the pitch at the east end being slightly away from the building--but so slight that the wind could blow the water, and that the rest of the area was approximately level.

The complaint is in eight counts. The first and fifth, charging negligence in making repairs to the outside of the building, are not involved in this appeal. The second and sixth alleged that defendant was negligent in waterproofing the basement of No. 145. The third and seventh charged defendant with breach of the waterproofing covenant relating to No. 145. Finally, the fourth and eighth stated that at plaintiffs' request defendant made repairs to correct 'a defective condition' which caused the basement to be flooded in rainstorms, and that defendant negligently performed its voluntary undertaking, with the result that on September 11, 1954 and August 13, 1955 floods of water entered the basement and caused extensive damage to a large amount of their merchandise and personal property. The extensive legal argument developed in plaintiffs' brief to support their claim that the exculpatory clause of the lease (paragraph 14) does not immunize the landlord from liability for breach of its covenant to waterproof the basement of 145 Cedar Lane (paragraph 34), or from liability for negligent performance of that contractual duty, is no longer of moment. (As to the legal effect of such exculpatory clause, see the recent cases of Kuzmiak v. Brookchester, Inc., 33 N.J.Super. 575, 111 A.2d 425 (App.Div.1955), and Freddi-Gail, Inc. v. Royal Holding Corp., 34 N.J.Super. 142, 111 A.2d 636 (App.Div.1955) ; and 175 A.L.R. 8, 83 (1948), 84 A.L.R. 654 (1933), 15 A.L.R. 971, 974 (1921), and 15 U. of Pitt.L.Rev. 493, 501 (1954), 15 Temple U.L.Q. 427 (1941), 42 Yale L.J. 139 (1932--1933), and 6 Williston on Contracts (rev.ed.1938), § 1751C, p....