Naye v. Noezel

• Decision Date: 12 June 1888
• Citation: 14 A. 750,50 N.J.L. 523
• Parties: NAYE v. NOEZEL.
• Court: New Jersey Supreme Court

14 A. 750

50 N.J.L. 523

NAYE

v. NOEZEL.

Supreme Court of New Jersey.

June 12, 1888.

Certiorari to court of common pleas, Middlesex county; COWENHAVEN, Judge.

Action by Samuel Naye against George Noezel for services and labor, commenced before a justice. Plaintiff had judgment before the justice, and also on the appeal to the common pleas. Defendant prosecutes this writ from the latter judgment.

Argued before DEPUE, VAN SYCKEL, and KNAPP, JJ.

Robert Adrian, for plaintiff. W. Strong & Sons, for defendant.

KNAPP, J. By this writ a judgment of the court of common pleas of the county of Middlesex, rendered on an appeal from the judgment in the court for the trial of small causes, is certified for review. Judgment in both courts was for plaintiff below. Defendant below prosecutes this writ, and assigns as reasons for reversal—First, "that it was made to appear by evidence presented by the defendant on the appeal that he, at the time of the service of the summons, was not a resident of the state of New Jersey." The defendant had appeared before the justice, and this objection was not there taken. It was too late to present it on his appeal. The common pleas was right in disregarding it. The other reasons, four in number, question the correctness of the judgment rendered in the common pleas upon the merits of the case.

It appears from the case sent up that the plaintiff below, with his wife, occupied a farm of the defendant as tenant under a lease for the term of three years, and that, during the continuance of this lease, the plaintiff, at the request of the defendant, and on defendant's promise to pay him for his work, constructed a barn on the premises, using an old house, which stood upon the premises, in part construction; and at the like request, and upon like promises to pay, the plaintiff broke off from the house in which he lived three kitchens, and removed them to another part of the premises, converting them into tenements. The defendant contended that the plaintiff was required to do this work under the covenants and conditions in his lease. The court below adjudged liability of the defendant to pay, on the ground that the plaintiff's contract in the lease did not embrace the work done by the plaintiff. In this we think the court was right. In that instrument the lessees "agree to repair the buildings, build all fences, and to generally improve the property; the material to be furnished by the party of the first part," (the lessor.) It ...