Silver v. Friedman, A--741

• Decision Date: 12 March 1952
• Docket Number: No. A--741,A--741
• Citation: 87 A.2d 336,18 N.J.Super. 367
• Parties: SILVER et al. v. FRIEDMAN et al.
• Court: New Jersey Superior Court — Appellate Division

Page 367

18 N.J.Super. 367

87 A.2d 336

SILVER et al. v. FRIEDMAN et al.

No. A--741.

Superior Court of New Jersey

Appellate Division.

Argued Feb. 18, 1952.

Decided March 12, 1952.

Moe Silver, Newark, argued the cause for the plaintiffs-appellants (David B. & Moe Silver, Newark, attorneys).

Leslie H. Cohen, Newark, argued the cause for the defendants-respondents (Joseph A. Fuerstman, Newark, on the brief).

Before Judges JACOBS, EASTWOOD and BIGELOW.

The opinion of the court was delivered by

EASTWOOD, J.A.D.

The plaintiffs appeal from an adverse judgment of the Essex County District Court, sitting without a jury, in favor of the defendant, George Friedman, in an action for unpaid rent.

On November 7, 1946, the plaintiffs and defendant entered into a written lease for the premises in question, for a period of five years commencing December 1, 1946. The lease provided, Inter alia, that the 'Tenant shall not assign this agreement or underlet or underlease the premises or any part thereof * * *'; also, that the sum of $1,000 was to be held as security for the faithful performance thereof.

Thereafter, on December 16, 1948, Friedman, with the consent of the landlord, assigned the lease and the security of $1,000 to Natalie Wiener and Jack Beerman. By the terms of the assignment Friedman agreed as follows: '* * * It is understood that I am not to be relieved of my responsibility under this lease and agree to be liable for the performance thereof in the event of a default or if my assignee violates the terms thereof.' And the assignees agreed: 'We, the assignees of the within lease, hereby assume same and agree to carry out all of the terms and conditions of said lease to the same extent and manner as though we were originally set forth therein as the tenant.' And: 'The landlord, hereby consents to the above assignment of lease and security with the understanding that the original tenant under said lease is not to be relieved from his responsibility and is to be held accountable in the event of a default or violation of said lease by the said assignees who are obligating themselves as the tenants under said lease in accordance with the terms of said lease.'

The plaintiffs and the assignees, Wiener and Beerman, on the day of the execution of the assignment, entered into a written agreement extending the terms of the lease for two years, fixing the rent for the extended period and providing that the security be retained by the landlord until the expiration of the extended period.

Subsequently, by an instrument dated March 7, 1949, Beerman and Wiener, without the knowledge or consent of Friedman, assigned the lease to Beerman and Meltzer, to which the landlord consented in the following language: 'The landlord, hereby consents to the above assignment of lease and security with the understanding that the original tenants under said lease are not to be relieved from their responsibility and are to be held accountable in the event of a default or violation of said lease, and addenda dated December 16, 1948, by the said assignees who are obligating themselves as the tenants under said lease in accordance with the terms of said lease.'

Incidentally, both instruments of assignment and the extension agreement were drawn by David Silver, a member of the New Jersey Bar and one of the partners of the plaintiff realty company.

Thereafter, default in the payment of rent by the last assignees occurred and plaintiffs instituted an action in the Essex County District Court against George Friedman, Natalie Wiener and Jack Beerman, for five months rent ($1,250), expressly waiving the excess over the jurisdiction of that court. The trial...