Gribbie v. Toms

• Citation: 57 A. 144,70 N.J.L. 522
• Parties: GRIBBIE et al. v. TOMS.
• Decision Date: 23 February 1904
• Court: United States State Supreme Court (New Jersey)

57 A. 144

70 N.J.L. 522

GRIBBIE et al.

v. TOMS.

Supreme Court of New Jersey.

Feb. 23, 1904.

(Syllabus by the Court.)

Appeal from District Court of Newark.

Action by Emma Gribbie and Elizabeth L. Conant against George W. Toms. Judgment for plaintiffs, and defendant appeals. Affirmed.

Argued November term, 1903, before FORT and PITNEY, JJ.

Ernest F. Keer, for appellant.

Alfred F. Stevens, for appellees.

PITNEY, J. This was an action to recover for use and occupation of lands of the plaintiffs held by the defendant Gen. St. p. 1915, § 3. The plaintiffs had Judgment below. From the state of the case it appears that the demised premises consisted of a portion of a factory building, with the use of machinery and power. In the year 1898 the defendant became a tenant thereof under the plaintiffs at an agreed rental of $000 per annum, and continued to occupy the premises and to pay the rent until the month of November, 1900. At that time (to use the language of the agreed state of facts) "about one-third of the premises rented was taken away on account of a sale by the plaintiffs, the landlords, made in May, 1900, of the said third to the Pennsylvania Railroad Company, of which taking away and sale said Gribbie Just previously to the taking away informed Toms. On and after November 1, 1900—that is to say, after the taking away of the said one-third—Toms refused to pay any rent for the remaining two-thirds, and be thereafter continued to occupy the remaining portion of said premises up to the time of the bringing of this action." Upon the trial the defendant contended that, because "one-third of said premises so held by the defendant was taken away," there was a partial eviction, and therefore a suspension of rent. The trial court overruled this contention, and gave judgment for the plaintiffs for the period covered by the suit at the rate of $500 per annum, instead of $600; the court accepting evidence aliunde the lease to show the value of so much of the premises originally demised as were occupied by the defendant during the period covered by the suit.

The appellant insists that the landlords have been guilty of evicting him from a part of the demised premises, and that, therefore, the entire rent is suspended during the continuance of the eviction. Hunter v. Reiley, 43 N. J. Law, 480; Morris v. Kettle, 57 N. J. Law, 218, 30 Atl. 879; Meeker v. Spalsbury, 66 N. J. Law, 60, 48 Atl. 1026; Dolton v. Sickel, 66 N. J. Law, 492, 49 Atl. 679. Although the language used in the agreed state of facts is not very clear, we assume (in favor of the appellant) that the averment that "about one-third of the premises rented was taken away" is equivalent to saying that to that extent te demised premises were destroyed so far as concerned their usefulness to the tenant. This, of course, amounts, in effect, to an eviction. But we think the statement of facts, upon a fair construciton, does not charge it upon the plaintiffs. At the utmost it appears merely that the plaintiffs during the tenancy sold a portion of the demised premises to a third party, andthat "on account of" this sale an eviciton subsequently took place, which resulted in the physical expulsion of the tenant from the portion so sold. From this, however, the reasonable inference is that the grantee of the plaintiffs was responsible for the eviction. As remarked by the late Chief Justice Beasley in Birckhead v. Cummins, 33 N. J. Law, at page 56: "The legal effect of eviction is so penal that the doctrine is not to be favored." In order to impose upon the landlord the penalty of a suspension of the entire rent during the continuance of the eviction, it is necessary, in our opinion, that it appear that the eviction was brought about by the landlord himself, or by his agency or procurement The facts...