Schultz v. Kneidl

• Court: New Jersey Superior Court
• Writing for the Court: KOLOVSKY
• Citation: Schultz v. Kneidl, 153 A.2d 779, 56 N.J.Super. 575 (N.J. Super. 1959)
• Decision Date: 28 July 1959
• Docket Number: No. L--8300,L--8300
• Parties: George W. SCHULTZ and Eleanor G. Schultz, his wife, Plaintiffs, v. Frieda KNEIDL, Defendant.

Page 575

56 N.J.Super. 575

153 A.2d 779

George W. SCHULTZ and Eleanor G. Schultz, his wife, Plaintiffs, v. Frieda KNEIDL, Defendant.

No. L--8300.

Superior Court of New Jersey Law Division.

Decided July 28, 1959.

Nathan Bernstein, Paterson, for plaintiffs (Slingland, Houman & Bernstein, Paterson, attorneys).

Archibald Kreiger, Paterson, for defendant.

KOLOVSKY, J.S.C.

On March 25, 1957 the one-story brick building at 16 Wanaque Avenue, in the Borough of Pompton Lakes, occupied by plainiffs for the conduct of their printing, publishing, and advertising business, was wrecked by fire. The damage and destruction to the front, rear and south walls, and to the roof, the roof beams and the steel beams of the building was so extensive that the borough building inspector ordered those three walls demolished. All that was left standing was the north wall, a party wall between 16 Wanaque Avenue and the building to the north, which wall, although cracked, could be and was repaired. The floor of the building was burned and charred. Affidavits submitted by defendant assert, and they are not contradicted, that the plumbing, electric and heating apparatus in the cellar were beyond repair; affidavits submitted by plaintiffs, also uncontradicted, indicate that the cellar walls have not been destroyed and that 'the cement floor in the rear 60% Of the building still remains.'

The premises, which are unoccupied, still are in the same condition as they were after the walls were demolished except that the debris has been removed.

Plaintiffs' possession of the demised premises, 'lands and premises located at No. 16 Wanaque Av,' was as lessees under a written lease executed by defendant as lessor, dated November 7, 1949, for a term scheduled to end on October 1, 1964.

Plaintiffs contend that defendant is liable to them in damages by reason of defendant having failed and refused to perform her alleged obligation to 'repair, restore, and rebuild the building and premises.'

The matter is before the court on cross-motions for summary judgment on the issue of liability.

If such alleged obligation and liability in damages do exist, they must be found in the provisions of the lease. Absent such lease provision, the asserted liability in damages finds no support in either the common law or the statutory law.

At common law, if there was not a contrary agreement on his part, a landlord was under no obligation to his tenant to repair or rebuild a leased building which was damaged or destroyed by fire. Lyon v. Buerman, 70 N.J.L. 620, 621, 57 A. 1009 (Sup.Ct.1904); Naumberg v. Young, 44 N.J.L. 331 (Sup.Ct.1882); Heintze v. Bentley, 34 N.J.Eq. 562 (E. & A.1881). On the contrary, unless a lease stipulation so provided, even complete destruction of the leased premises did not relieve the tenant of his obligation to pay rent, Carley v. Liberty Hat Mfg. Co., 81 N.J.L. 502, 79 A. 447, 33 L.R.A., N.S., 545 (E. & A. 1911); Pivnick v. Seaboard Supply Co., 30 N.J.Super. 605, 611, 105 A.2d 695 (Cty.Ct.1954); and a lease provision requiring the tenant to deliver up the premises in the same condition as upon the demise, obligated him to repair fire damage and, in case of total destruction, to rebuild. Pivnick v. Seaboard Supply Co., supra; Coles v. Celluloid Mfg. Co., 39 N.J.L. 326 (Sup.Ct.1877), affirmed o.b. 40 N.J.L. 381 (E. & A.1878).

Nor was an obligation which would subject him to damages imposed on the landlord by the statutes, now R.S. 46:8--6 and 7, N.J.S.A., enacted to relieve tenants from the hardship of the common-law rule.

The cited sections, which do not apply where the parties have otherwise stipulated in their agreement of lease, provide that if a building or buildings erected on leased premises are totally destroyed by fire or otherwise, without the fault of the lessee, the lease comes to an end, rent being payable up to the time of destruction (R.S. 46:8--7, N.J.S.A.); if the building or buildings are injured by fire without the fault of the lessee, 'the landlord shall repair the same as speedily as possible'; in default of such repair the rent ceases until such time as the building or buildings are put in complete repair (R.S. 46:8--6, N.J.S.A.).

Neither section imposes any liability in damages on the landlord. Total destruction merely terminates the lease, and even R.S. 46:8--6, N.J.S.A., which expressly requires the landlord to repair fire damage as speedily as possible, does not make the landlord liable in damages for failure to do so. 'The only penalty which it imposes upon him for failure to comply with this requirement is that the rent shall cease so long as he neglects to comply with this provision of the statute.' Sayre v. Roseville Motor Co., 85 N.J.L. 10, 91 A. 596, 598 (Sup.Ct.1913). Accord, Lesser v. Kline, 101 Conn. 740, 127 A. 279 (Sup.Ct.Err.1925).

The complaint alleges that defendant's covenant 'to repair, restore and rebuild said building and premises' are to be found in article XIII and other provisions of the lease, but in their brief, plaintiffs rely, and properly so, solely on article XIII.

The other provisions of the lease are not pertinent to the issue presented. They include, Inter alia, an agreement by the lessor to initially put the plumbing and heating system in good working order and condition and to make any necessary repairs to the exterior of the premises, and an agreement by the lessees to make plumbing and heating repairs, interior repairs, excluding structural repairs and replacements, and an agreement to deliver up possession of the demised premises upon termination of the lease 'in good order and repair and clean condition * * * excepting the effects of ordinary wear and tear and depreciation arising from lapse of time.'

The lessor's covenant to make exterior repairs does not obligate her to rebuild the building which was destroyed by fire. Although a general and unqualified covenant by a lessor to repair has been held to impose on him the duty to rebuild the premises after destruction by fire or the elements, a limited covenant by the lessor to keep the exterior, roof, or other parts in repair does not bind him to rebuild the building in the event of its destruction by fire. 51 C.J.S., Landlord & Tenant § 368, p. 1099; 32 Am.Jur., Landlord & Tenant, § 709, p. 586; Annotation 38 A.L.R.2d 694; Miller v. Miller, 217 Miss. 650, 64 So.2d 739, 38 A.L.R.2d 674, 680 (Sup.Ct.1953); Lesser v. Kline, 101 Conn. 740, 127 A. 279 (Sup.Ct.Err.1925); see also, Stern v. Majestic Furniture Corp., 34 N.J.Super. 446, 112 A.2d 790 (Ch.Div.1955).

The parties agree that a determination of the issues requires a construction of article XIII of the lease, and that such interpretation is a matter of law for the court. Crest Drug Stores, Inc. v. Levine, 142 N.J.Eq. 652, 655, 61 A.2d 190 (E. & E. 1948); Burnstine v. Margulies, 18 N.J.Super. 259, 87 A.2d 37 (App.Div.1952); cf. Michaels v. Brookchester, Inc., 26 N.J. 379, 387, 140 A.2d 199 (1958).

Although plaintiffs' brief suggests that the lease was drawn by the landlord's attorney and therefore that 'the construction of the lease should tend to favor the tenant rather than the landlord' (Burnstine v. Margulies, 18 N.J.Super. 259, 265, 87 A.2d 37, 39 (App.Div.1952)), it developed at oral argument that although the original draft of the lease was prepared by the landlord's attorney, that draft was substantially revised at conferences held between the parties and their respective attorneys, so that the present lease, 16 pages long and containing 29 articles, is the product of the joint efforts of the attorney for the lessor and the attorney for the lessees. There is no basis for the application of the quoted rule of construction. 'The rule is never applied to words which are the common language of both parties, even though they are put in writing by one of the parties.' 17 C.J.S. Contracts § 324, p. 754; Beck v. F. W. Woolworth Co., 111 F.Supp. 824 (D.C.Iowa 1953).

Article XIII of the lease provides:

'(a) In the event that the demised premises shall be partially damaged or destroyed by a casualty, the Lessors will, at the option of the Lessees, with all due diligence, at their own cost and expense, repair, restore and rebuild the demised premises, so that the premises after such work shall be substantially the same as prior to such damage. It is expressly agreed that if a partial destruction, as above described, shall occur, the rent hereby reserved shall not abate unless the premises shall be thereby rendered untenantable so as to preclude the conduct of the business therein. If the premises should be thus rendered untenantable, the rent shall abate until the premises can again be used for printing, publishing and advertising purposes. The requirement of the diligence of the Lessors in restoring the premises shall be subject to a reasonable opportunity to adjust loss with insurance companies, and to the Lessors' inability to obtain labor and material where such inability is not due to the Lessors' own fault.

'(b) In the event that the demised premises shall be partially damaged or destroyed by a casualty so as to effectively limit the use of a portion of the premises for the business of the Lessees, then the rent shall abate for the portion of the premises effectively limited until such time as effective use of the premises is completely restored.

'(c) In the event that the Lessors shall not have repaired a partial destruction of the premises within 90 days or a complete destruction of the premises within 120 days after the date of destruction, then the Lessees shall have the option of terminating this lease by serving written notice upon the Lessors of their intention to terminate this lease. Said notice shall contain a specified date of termination and upon service of such notice upon the Lessors by the Lessees, said date of termination shall terminate this lease as if said termination date had originally been fixed as the expiration date of this...