Longi v. Raymond-Commerce Corp., RAYMOND-COMMERCE

• Decision Date: 23 March 1955
• Docket Number: RAYMOND-COMMERCE,No. A--98,A--98
• Citation: 113 A.2d 69,34 N.J.Super. 593
• Parties: Mary LONGI and Peter Longi, Plaintiffs-Respondents and Cross-Appellants, v.CORPORATION, a New Jersey corporation, Defendant-Respondent, and City of Newark, a municipal corporation, Defendant-Appellant and Cross-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 593

34 N.J.Super. 593

113 A.2d 69

Mary LONGI and Peter Longi, Plaintiffs-Respondents and Cross-Appellants, v. RAYMOND-COMMERCE CORPORATION, a New Jersey corporation Defendant-Respondent and City of Newark, a municipal corporation, Defendant-Appellant and Cross-Respondent.

No. A--98.

Superior Court of New Jersey Appellate Division.

Argued March 7, 1955.

Decided March 23, 1955.

Thomas M. Kane, Newark, argued the cause for the defendant-appellant and cross-respondent (Vincent P. Torppey, Corp. Counsel, Newark, attorney).

Harry Cohn, Newark, argued the cause for the plaintiffs-respondents and cross-appellants.

Victor C. Hansen, Newark, argued the cause for the defendant-respondent (Mead, Gleeson, Hansen & Pantages, Newark, attorneys, Robert L. Clifford, Newark, on the brief).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

FREUND, J.A.D.

The plaintiff, Mary Longi, a pedestrian on Raymond Boulevard, in the City of Newark, tripped and fell over a raised concrete slab in the sidewalk abutting the Raymond-Commerce Building, sustaining injuries. This suit was brought by her and her husband, Peter Longi, to recover damages from the city of Newark as owner of the land and from the Raymond-Commerce Corporation as lessee. At the conclusion of the plaintiff's case the court, on motion of the lessee, entered judgment in its favor and against the plaintiffs on the ground that there was no proof that it could be held responsible for or charged with the condition which caused the accident. The plaintiffs' case against the city was submitted to the jury, which rendered a verdict of $5,000 in favor of Mary Longi, and of $2,935 in favor of Peter Longi, which latter was by consent reduced to $1,935.

The city had filed a cross-claim against the lessee, alleging that under the terms of the lease it agreed to make repairs to the sidewalk, and to indemnify and hold the municipality harmless from claims arising from accidents thereon. On motion of the lessee, the court entered judgment in its favor and against the city on the ground that the injury resulted from an act of the city, not encompassed by the lease provisions.

There are two appeals before us:--The city appeals from the judgment entered for the plaintiffs and from the dismissal of its cross-claim against the lessee. The plaintiffs cross-appeal from the dismissal of their cause of action against the lessee.

The city is the owner of a plot of land extending from Commerce Street to Raymond Boulevard. On December 31, 1928 it entered into a lease for a term of 50 years with Abraham E. Lefcourt, under the terms of which a 20-story office building was to be, and later was, erected on the premises. On October 7, 1931 he assigned the lease to the defendant, Raymond-Commerce Corporation, which is still in possession and control of the premises. The lease obligates the tenant to make all repairs to the sidewalks adjacent to the premises, and to indemnify and hold harmless the municipality from any and all claims arising out of the lessee's conduct and management of the premises and adjacent sidewalks. In 1932, subsequent to the execution and assignment of the lease, the municipality, in connection with the construction of a subway under Raymond Boulevard, tore up the sidewalk along Raymond Boulevard. Upon completion of the project, a new sidewalk was laid by the city.

On September 27, 1951 Mary Longi tripped and fell over the raised edge of a concrete slab in the sidewalk. At the trial, the plaintiffs adduced testimony that the new sidewalk had been so improperly constructed that one section became depressed, causing a difference in elevation which constituted a 'tripping hazard' and public nuisance. The municipality offered testimony that the sidewalk had been laid according to accepted standards, but its own engineers admitted that no provision had been made by the use of reinforced concrete or otherwise to take care of the effect upon the sidewalk of natural settling and vibration from the subway.

The appeal from the judgment in favor of the plaintiffs may be readily disposed of. The claim of the plaintiffs was based on active wrongdoing or creation of a nuisance. The obstruction or dangerous condition of a public highway constitutes a nuisance, and the liability of a municipality for the creation thereof by its own positive misfeasance is firmly settled. Milstrey v. Hackensack, 6 N.J. 400, 79 A.2d 37 (1951). For a collation of recent cases and annotation on the specific subject of sidewalks and depressions therein, see Parker v. Denver, 128 Colo. 355, 262 P.2d 553 (Sup.Ct.1953); 37 A.L.R.2d 1177.

The fact that under the lease the lessee was obligated to repair the sidewalk did not relieve the municipality as owner from discharging its duty to lawful users of the highway to refrain from creating a nuisance or from active wrongdoing. Gainfort v. 229 Raritan Avenue Corp., 127 N.J.L. 409, 22 A.2d 893 (Sup.Ct.1941). In the instant case, the municipality having removed and relaid the sidewalk, a question of fact was presented, and there was no error in the submission of the case to the jury. Further, in view of the injury, the verdicts were not so excessive as to warrant our interference therewith.

The municipality seeks to minimize the weight of the expert testimony given by Mr. Sheffield for the plaintiffs by pointing out that the answer to the hypothetical question asked him had to be based on the testimony of Mr. Whippen, the city engineer. At the trial the city's attorney first objected to the question, but after examining Sheffield concerning his knowledge of Whippen's testimony, apparently he felt satisfied because he then stated, 'All right, no further questions.' In light of the record, he must be held to have either withdrawn his objection or not to have regarded the evidence adduced as materially prejudicial.

As to the plaintiffs' cross-appeal from the judgment in favor of the lessee: The covenant to repair is a continuing covenant applying to the premises in the possession of the lessee and included the new sidewalk laid by the city during the term. 51 C.J.S., Landlord and Tenant, § 368(c), p. 1095. For breach of contractual undertaking between the lessor and the lessee alone, there would be no liability to the plaintiff, Clyne v. Helmes, 61 N.J.L. 358, 39 A. 767 (Sup.Ct.1898), but the plaintiffs' case is not founded on breach of contract alone, but also for violation of a duty imposed by common law upon an occupier of land. The law regards a lease as the equivalent of a sale of premises for the term, and the lessee becomes for the time being the owner and occupier. From the evidence, the jury could find that the city as lessor had created a nuisance and that the lessee continued to occupy the premises and maintained the nuisance created by the lessor.

The superintendent of the defendant lessee testified that in 1938, noticing that part of the sidewalk had become depressed and a 'tripping hazard,' he caused repairs to be made:

'Q. Did you do any work in that area? A. Around 1938 and 1939, shall we say, it started to show quite a bit across the sidewalk and I had one of our men chip that edge of the concrete so that it was not a tripping hazard like it was before.'

He testified that the chipping was done under his direction 'to level the difference of the slabs at that point,' and that 'once every four or five years later we might have chipped a little bit more off there.' The endeavor of the lessee to correct a defect is not a basis for liability where the attempt to repair does not make the condition more dangerous or different from the old hazard. Halloway v. Goldenberg, 4 N.J.Super. 488, 67 A.2d 891 (App.Div.1949); Snidman v. Dorfman, 7 N.J.Super. 207, 72 A.2d 795 (App.Div.1950).

Here, however, we have testimony from which a jury could conclude that in 1932 the owner of the premises created a nuisance upon a public way; that the lessee made no objection to the city's removal and relaying of the sidewalk; that the lessee in effect maintained the nuisance for a number of years, negatively by failure to cause its elimination or disclaim responsibility therefor by formal notice to the lessor, and positively, by attempting of its own accord to lessen the 'tripping hazard.' Under such state...