Rosenberg v. Krinick

• Decision Date: 17 July 1936
• Docket Number: No. 21.,21.
• Citation: 186 A. 446
• Parties: ROSENBERG et al. v. KRINICK.
• Court: New Jersey Supreme Court

186 A. 446

ROSENBERG et al.

v. KRINICK.

No. 21.

Supreme Court of New Jersey.

July 17, 1936.

Appeal from Court of Common Pleas, Middlesex County.

Action in tort by Bertha Rosenberg and her husband, Samuel Rosenberg, against Rebecca Krinick. From a judgment based on jury verdicts in favor of Bertha Rosenberg for $1,000 and in favor of Samuel Rosenberg for $172, the defendant appeals.

Reversed.

Argued May term, 1936, before BROGAN, C. J, and CASE and PERSKIE, JJ.

George L. Burton, of South River, for appellant.

David T. Wilentz, of Perth Amboy, for appellees.

PERSKIE, Justice.

Is a landlord liable to his tenant, in tort, for failure to carry out his promise to repair the leased premises, when that promise was made subsequent to the letting and was not supported by a new consideration ?

Defendant was the owner of a two-family dwelling house in New Brunswick, N. J. She rented the lower floor to the plaintiff, and occupied the upper floor herself. In the rear of each apartment was a porch completely inclosed by a railing. Although there is some proof that plaintiff occasionally permitted defendant to use her porch to hang out clothes to be dried, nevertheless, it is rather clear that the porches were not common porches; they were only for the use of the tenant in the apartment to which they were appurtenant.

On March 19, 1934, Bertha Rosenberg, while on the rear porch of her apartment for the purpose of emptying a pail of water, leaned against the railing of the porch. The railing gave way, and plaintiff was precipitated to the ground some few feet below, and sustained injuries for which she and her husband recovered in the amounts already stated.

Plaintiffs admit that there was no agreement to repair the premises at the time of the letting. Their alleged right of action is made to rest upon a promise so made by the landlord a short time, approximately one month, before the accident.

The trial judge denied defendant's motion for a nonsuit, and, in charging the jury, among other things, said:

"Now, as stated, the case is a very, very sharp one. It rests entirely upon this alleged conversation and promise that Mr. Rosenberg had with Mrs. Krinick. If that testimony of Mr. Rosenberg is true, and Mrs. Krinick did promise to repair, then, of course, the Rosenbergs could rely upon that promise to repair for a reasonable length of time. If that length of time, however, became unreasonably long so that the tenants would have the right to say, well, even, though the landlord did promise to repair she has not kept her promise and does not intend to, then, after that time goes by, the tenant takes the risk of the defective condition.

"The case, as I have stated, depends upon the truthfulness of the story which Mr. Rosenberg relates about the promise of Mrs. Krinick to have the porch rail fixed."

It is argued for the defendant that the landlord is under no obligation to repair rented premises unless he contracts to do so at the time of the renting; that a subsequent promise to repair cannot furnish the basis of a cause of action unless supported by a new consideration; and that no such consideration exists here for the defendant's promise, if any she made, and, therefore, the trial court committed reversible error in refusing to grant a nonsuit and in charging the jury as hereinabove quoted.

The general rule is, of course, that the landlord is under no duty to repair leased premises in the absence of any promise so to do; there is no implied contract or consideration that the premises are or shall be fit and suitable for the use of the tenants. Bolitho v. Mintz, 106 N.J. Law, 449, 451, 148 A. 737; Siggins v. McGill, 72 N.J.Law, 263, 62 A. 411, 3 L.R.A. (N.S.) 316, 111 Am.St.Rep. 666; Reilly v. Feldman, 103 N.J.Law, 517, 138 A. 307. The basic and elementary reason for the rule is that ordinarily the landlord, once the tenant takes possession, has no right of entry nor any control over the leased premises. But this general rule is not without exceptions. If, at the time of making the lease, the landlord promised to repair and there is consideration for that promise, and damage ensued which was chargeable to the lack of repair, under these circumstances, liability exists. If, moreover, the defective condition is a part of the premises used in common by several tenants, the law imposes on the landlord, who under these circumstances has control and a right of entry, the duty of using reasonable care to maintain the common premises in a reasonably safe condition. See Johnson v. Lembeck & Betz Eagle Brewing Co, 75 N.J.Law, 282, 68 A. 85, affirmed 77 N.J.Law, 617, 72 A. 1118; Barthelmess v. Bergamo, 103 N.J. Law, 397, 135 A. 794; Peterson v. Zaremba, 110 N.J.Law, 529, 531, 166 A. 527, 529; Perry v. Levy, 87 N.J.Law, 670, 94 A. 569; La Brasca v. Hinchman, 81 N.J. Law, 367, 79 A. 885; Hahner v. Bender, 101 N.J.Law, 102, 127 A. 202.

Under the proofs here exhibited, a different problem is involved. The porch was not a common porch; the promise to repair was not made at the time of the letting, but subsequent thereto. Thus we approach the determination of the question first stated. Is the landlord liable for the resultant injuries sustained by the tenant in the premises? We think...