O'Malley v. Gerth

• Decision Date: 16 June 1902
• Citation: 67 N.J.L. 610,52 A. 563
• Parties: O'MALLEY v. GERTH et al.
• Court: New Jersey Supreme Court

52 A. 563

67 N.J.L. 610

O'MALLEY

v. GERTH et al.

Court of Errors and Appeals of New Jersey.

June 16, 1902.

(Syllabus by the Court.)

Error to circuit court, Essex county; Swayze, Judge.

Action by Martin O'Malley against Lilly Gerth and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Samuel Kalisch, for plaintiffs in error.

Elvin W. Crane and Francis Child, for defendant in error.

FORT, J. The defendant in error is a policeman of the city of Newark. While on duty on the 29th day of April, 1900, he was passing through Campbell street, and stepped on a cover over a coal hole. The cover turned, and he fell astride it into the hole, and was seriously injured. The premises in front of which the coal hole was were the property of Julius Gerth in his lifetime. By his will this property was made a part of the residue of his estate, and was left in trust to his executors, to let and rent it, and to collect the rents accruing from the same, and after paying taxes, insurance, repairs, and other charges, to pay the net surplus to the testator's widow. The executors have a power of sale. The three defendants are named as executors in the will, and all qualified. The accident occurred through the faulty condition of the coal hole, owing, undoubtedly, to the spreading of a cracked flagstone in which the rim of the lid or cover rested. Because of the enlargement of the hole, the lid at times would get in a position where it would slip in the hole, and turn upon its edge from pressure, and did when the defendant in error stepped upon it. Whether the defendants had knowledge of this condition of the hole and lid, and whether they had failed to repair within a reasonable time after notice thereof, was left to the jury, as a question of fact, which they must find in the affirmative before the verdict could be for the plaintiff. They so found. The additional lines of defense relied upon were: First, that the premises were occupied by a tenant, and that the fault was the fault of the tenant, and he alone was liable for the accident; no obligation being upon the defendants to repair. Second. That the damage resulted from a defect in the sidewalk, and that the city was charged with its repair, and it alone was liable for injuries resulting from nonrepair. Third. That if the defendants were liable, they could not be held as individuals, but only as executors or trustees; their relation to the property being solely one of trust.

The trial judge properly declared the law as to the first proposition, and left it to the jury to determine whether the tenant had the exclusive possession of the premises, and whether it was incumbent upon the defendants to repair. He told the jury that if the premises were rented by a tenant, and the defendants did not reserve a right of entry for repair, or agree to repair, and the defective condition of the coal hole occurred during the tenancy, and while the defendants had no right or duty to repair, the plaintiff could not recover, but if the tenancy was uncertain or monthly, or the like, and the defendants reserved or continuously exercised the right to repair, and had had their attention called to the defect in the hole, and had after this failed to repair, they were not, under that situation, relieved from...