Dolid v. Leatherkraft Corp.

• Decision Date: 21 February 1956
• Docket Number: No. A--24,A--24
• Citation: 39 N.J.Super. 194,120 A.2d 617
• Parties: Fannie DOLID, Plaintiff-Respondent, v. LEATHERKRAFT CORPORATION, a corporation of New Jersey, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 194

39 N.J.Super. 194

120 A.2d 617

Fannie DOLID, Plaintiff-Respondent, v. LEATHERKRAFT CORPORATION, a corporation of New Jersey Defendant-Appellant.

No. A--24.

Superior Court of New Jersey Appellate Division.

Argued Feb. 6, 1956.

Decided Feb. 21, 1956.

Max L. Rosenstein, Newark, for appellant.

Milton M. Unger, Newark, for respondent. (Milton M. and Adrian M. Unger, Newark, attorneys; Sam Denstman, Newark, on the brief).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

JAYNE, J.A.D.

A summarization of the factual circumstances will display the characteristics of this controversy. On and prior to July 7, 1950 one Abraham Dolid was a stockholder, director, and officer of the defendant corporation and on the date mentioned discontinued his relationship with the company by the disposition of his capital stock and by the acquisition from the company in return of the title to the factory property occupied by the company, consisting of a four-story and basement building at Nos. 17--23 Nevada Street, together with the premises at Nos. 37--41--43--45 Marshall Street in the City of Newark.

In association with the conveyance to him, Dolid executed and delivered to the defendant a lease of the property for a term of five years from July 1, 1950 at an annual rental of $4,200, with an option accorded to the defendant to extend its tenancy for an additional period of five years.

It is significant to notice that the provisions of the lease obligated the defendant to pay as additional rent not only the annual taxes, impositions, charges, and levies assessed upon the premises by the city and also the cost of the insurance coverage, but also to fulfill the following obligation expressed in paragraph 13 of the instrument:

'13. The lessee shall make all necessary repairs, interior and exterior, in and about the leased premises at its own expense; but shall not be required to make any structural repairs or alterations.'

The lessor, Abraham Dolid, thereafter died and the title to the property passed by testamentary devise to the decedent's widow, Fannie Dolid, the plaintiff herein, to whom the defendant as lessee attorned.

The litigation was originated by the institution of an action by the plaintiff in the Essex County District Court in which she alleged that the defendant failed to make all necessary repairs, interior and exterior, in and about the leased premises at its own expense in performance of its covenant, and that her demand addressed to the defendant to yield to her the possession of the demised premises for that default had been ignored, wherefore she claimed to be entitled to a judgment for possession.

The action was transferred to the Law Division of this court by an order made under the authority conferred by N.J.S.A. 2A:18--60 et seq., and a jury verdict rendered by a vote of ten to two awarded possession of the demised premises to the plaintiff. A new trial was denied by the trial judge. The defendant impugns the conformable judgment.

The defendant proposes on this appeal that the verdict was the ultimate evolution of the foreign influences of passion and mistake, and that it conspicuously exhibits an oppugnancy to the credible and trustworthy evidence. Where, in the consideration of conflicting testimony, as here, the facts found from the evidence by the jury will sustain the verdict, it is not within the exercise of the purely remedial power of the trial judge or of this appeallate tribunal to nullify the verdict simply because, in the opinion of the trial judge or in our perception of the state of the evidence, we think that the jury might preferably have reached a different conclusion. Bowen v. Healy's, Inc., 16 N.J.Misc. 113, 197 A. 655 (Cir.Ct.1938), and authoritative citations, affirmed sub nom. Fisher v. Healy's Special Tours, 121 N.J.L. 198, 1 A.2d 848 (E. & A.1938).

Moreover a responsive ear is directed toward the enunciation of our Supreme Court in Hartpence v. Grouleff, 15 N.J. 545, 549, 105 A.2d 514 (1954) that the action of the trial court in denying a new trial should not be overthrown unless it is clearly manifest that his determination was without basis in law or fact, or both, with the result that there was a denial of justice under the law. Our appellate power cannot be peremptorily exercised. It is circumscribed by the definitely established precedents.

On this phase the the appeal perhaps some mention should be made of the acknowledged circumstance that when, at the trial, counsel for the defendant in his summation to the jury concentrated a vociferous bombardment upon the questionable trustworthiness of the plaintiff's testimony, the latter, in the view of the jury, shed copious tears.

Well, many women freely welcome a natural propensity to weep, often with and without justifiable provocation and at times perhaps for purely serviceable reasons. It is perhaps true that in some conflicts tears may be more useful than logic. The courtroom has traditionally afforded a stage for drama whereon not only hysterical litigants but talented attorneys sometimes awaken souls by the tender strokes of emotional art. A most vigilant judge cannot be expected to prevent the spontaneous occurrence of such episodes. Resultant mistrials? No. Judicial discretion has its field of employment not only to protect the just rights of litigants, but also to prevent waste of time and effort. In the present instance no assuaging action of the judge was requested at the trial. Cf. Schuttler v. Reinhardt, 17 N.J.Super. 480, 484, 86 A.2d 438 (App.Div.1952). We are not persuaded that the plaintiff's emotional exhibition thus provoked was of such a prejudicial extent and quality to warrant a nullification of the final judgment.

We proceed to consider the additional points. The trial judge stated in his charge:

'This whole controversy appears to revolve around the meaning of the phrase 'necessary repairs.' Necessary for what? Necessary to preserve the building against waste, against the elements, necessary to keep it in repair for the use of the tenant?'

The criticism of the charge to the jury is focused upon the following quoted passage:

'The lease in this case requires the tenant to make all necessary repairs, interior and exterior, in and about the leased premises at its own expense. The lease also provides that if the tenant defaults in its obligation under the lease and the default continues for twenty days after written notice given to the tenant, the landlord may re-enter the property and terminate the lease, and such notice has been given in this case.

'The obligation to make necessary repairs under the lease in this case means that the tenant is required to make such repairs as are needed to render the premises tenantable for the purpose for which they were rented, And also to make such ordinary repairs as are necessary to prevent injury, waste and decay of the premises and make them safe for the operation for which they were designed.'

Our italicized words draw attention to the passage which counsel for the defendant insists was prejudicially erroneous. A concise statement of counsel's position finds expression Verbatim in the annotation appearing in 45 A.L.R. 24: 'A convenant to make 'necessary repairs' obligates the tenant to make such repairs as are necessary for the use of the leased premises by the tenant for the purpose for which they were leased.'

See, also, 32 Am.Jur. 673, 674, § 789.

The import of counsel's insistence is that the covenant embodied in...