Rizzi v. Ross
| Decision Date | 22 January 1937 |
| Docket Number | No. 25.,25. |
| Citation | 189 A. 110 |
| Parties | RIZZI v. ROSS. |
| Court | New Jersey Supreme Court |
Syllabus by the Court.
1. It is the duty of an owner to use reasonable care to see that such portions of the general premises as are reserved to him for his care, preservation, and repair are reasonably safe for the use of the tenants and those who are impliedly invited to come upon them, and an owner may not, by mere contract with another, relieve himself of that duty.
2. Plaintiff having sued the owner for personal injuries caused by negligent failure to repair a common stairway, the proofs reviewed and found not to sustain a nonsuit granted upon the ground that the defendant owner had stripped himself of all power over and control of the premises.
Appeal from Supreme Court.
Action by Louis Rizzi against Frank D. Ross. From a judgment of nonsuit, plaintiff appeals.
Reversed, and a venire de novo granted.
Harry Cohn and Nathan Geller, both of Newark, for appellant.
Joseph C. Paul, of Newark, for respondent.
Plaintiff sued for personal injuries received on defendant's apartment house premises and caused, as alleged, by the defendant's negligent failure to repair a common stairway. The trial judge in the Essex circuit, at the close of plaintiff's case, granted judgment of nonsuit upon the ground that the defendant, although the owner, was shown by the proofs to have stripped himself, as a matter of law, of all power over and control of the premises. Plaintiff appeals.
The question turns upon the construction to be given to two agreements, one of them made between defendant, as owner, and Fidelity Union Title & Mortgage Guaranty Company, as mortgagee, and the other, consequent upon the first, between defendant and one Lipstein. The first instrument recites that there has been such a default in the owner's obligations under the bond and mortgage that the mortgagee is empowered to make entry and collect rents, which right, however, the mortgagee postpones upon the proposal by the owner that the latter appoint, by an instrument to be approved by the mortgagee, Lipstein "agent and trustee of the owner for the management of the said property and the collection and disbursement of the income thereof," but subject to the election of the mortgagee at any time to terminate the postponement and to exercise its rights under the breached bond and mortgage. The agreement further provides that nothing therein shall be construed, by implication or otherwise, as constituting the Fidelity Company a mortgagee in possession. The second instrument is between the owner and Lipstein. Lipstein is therein referred to both as "trustee" and as "agent." It is recited that the owner wishes Lipstein to assume the management and operation of the premises at a compensation of 5 per centum of the rental collections. The formal agreement consists of ten numbered paragraphs. It provides that Lipstein "shall assume and take over the management and operation" of the premises, collect the rents "which may at any time be or become due to the said owner," institute summary proceedings in his own name or the name of the owner, make hirings and leases, "cause such repairs to be made from time to time as are necessary for the proper maintenance and operation of said premises including plumbing, carpenter work and steam fitting but any and all substantial repairs shall be made only with the consent and approval of owner and Fidelity Union Title and Mortgage Guaranty Company mortgagee; and he shall purchase fuel, oil, and coal and other supplies that may be necessary for heating and properly maintaining said premises;" that Lipstein shall pay the balance of the moneys monthly to the mortgagee, and shall pay any balance on hand at the termination of the agreement to the owner if payment cannot be made to any authorized purpose and if the mortgagee shall consent. The instrument further provides that "for the purpose and objects set forth in the agreement the 'owner' does hereby constitute and appoint the said Abraham Lipstein agent and trustee of the owner...
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