Baum v. Lincoln Highway Bldg. & Loan Ass'n

• Decision Date: 01 February 1932
• Docket Number: No. 44.,44.
• Citation: 158 A. 467
• Parties: BAUM et ux. v. LINCOLN HIGHWAY BLDG. & LOAN ASS'N.
• Court: New Jersey Supreme Court

158 A. 467

BAUM et ux.

v. LINCOLN HIGHWAY BLDG. & LOAN ASS'N.

No. 44.

Court of Errors and Appeals of New Jersey.

Feb. 1, 1932.

Syllabus by the Court.

A sham answer is one good on its face, but false in fact, and a frivolous answer is one which on its face sets up no defense, although it may be true in fact.

The rule is well settled that one colessor cannot accept a surrender so as to relieve the lessee from liability to the other lessor.

Appeal from Circuit Court, Essex County.

Action by Herman Z. Baum and wife against the Lincoln Highway Building & Loan Association, a corporation. Judgment for the plaintiffs, and the defendant appeals.

Affirmed.

Harry T. Davimos, of Newark, for appellant.

Benjamin M. Weinberg, of Newark, for respondents.

HETFIELD, J.

This is an appeal from a judgment of the Essex County Circuit Court, entered upon striking out defendant's answer. The respondents, husband and wife, are joint owners of property situated at Nos. 507-509 Springfield avenue, Newark, N. J. They leased the premises to the appellant for a term of eleven years, commencing September 15, 1927, which lease provided, among other things, as follows: "Should the lessee desire to vacate and terminate this lease at any time during the period hereof or its renewal, to pay the sum of One Thousand Dollars ($1000) to the Lessors as liquidated damages and in consideration of the privilege of so surrendering the lease herein, and in addition thereto to notify the said Lessors at least three months in advance of said intention of said determination to surrender the lease herein." The appellant entered into and occupied the premises for approximately three years, and on August 2, 1930, served a written notice that it had elected to terminate the tenancy on the 15th of November of that year, and vacated accordingly. The respondents thereupon, as provided by the terms of the lease, demanded from the appellant the sum of $1,000, as liquidated damages, and, upon refusal to comply therewith, this suit was instituted. The appellant, in its answer, denied liability, and in support thereof alleged, in substance, that Herman Z. Baum, one of the respondents, was a director in the appellant corporation, and as such attended one of its regular meetings, held some time in August, 1930, at which time a discussion was had by the directors in respect to appellant vacating the premises, by reason of the cost of maintaining same, and that Baum then and there gave notice to the...