Skolnick v. East Boston Sav. Bank

Decision Date17 September 1940
Citation29 N.E.2d 585,307 Mass. 1
PartiesSKOLNICK v. EAST BOSTON SAV. BANK (two cases).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Suffolk County; Walsh, Judge.

Action by Isadore Skolnick, individually and as administrator of the estate of Sarah Skolnick, deceased, against the East Boston Savings Bank for injuries sustained by intestate in fall from rear veranda of apartment allegedly hired from defendant. Verdict for the plaintiff, and defendant brings exceptions.

Exceptions overruled.M. H. Goldman, G. S. Harvey, and S. Fishman, all of Boston, for plaintiff.

W. F. Porter and J. J. Butler, both of Boston, for defendant.

LUMMUS, Justice.

These actions, the first for personal injury sustained by the plaintiff's intestate, Sarah Skolnick, and the second for consequential damages sustained by her husband, result from the fall of Sarah Skolnick from the rear veranda of the third floor apartment at 10 Beach Road in Winthrop on July 30, 1937. Sarah Skolnick hired that apartment from Myer Swartz in March, 1937, paying $26 a month as rent. As part of the consideration for the hiring, Swartz promised to repair the railing, which was loose and unsafe, that ran around the veranda. In June he sent a carpenter, who nailed the railing to the house. The fall happened while Sarah Skolnick was pouring water from the veranda into the yard below, and in so doingcame into contact with the railing, which gave way. An auditor, to whom the case was referred and whose findings were not to be final, found that the repair to the railing was negligently made, and that negligence in the repair was the cause of the fall. That finding warranted a finding of liability against Swartz, if he was landlord, or against the landlord for whom Swartz was acting as the duly authorized agent. Cleary v. Union Realty Co., 300 Mass. 312, 15 N.E.2d 184;Bailey v. First Realty Co., Mass., 25 N.E.2d 712. The main question is whether the evidence warranted a finding that Swartz was the agent of the defendant in dealing with Sarah Skolnick. We think it did. Various questions of practice have been raised by the plaintiff, but we find it unnecessary to deal with them, in view of the result to which we have come on the merits.

If the defendant through Swartz let the tenement to Sarah Skolnick, it is immaterial that the defendant had no title except by way of mortgage. The act of the defendant in letting the property was an assumption of control, and created the relation of landlord and tenant and the duties attendant upon that relation. Lindsey v. Leighton, 150 Mass. 285, 22 N.E. 901,15 Am.St.Rep. 199;Curry v. Dorr, 210 Mass. 430, 97 N.E. 87;Connery v. Cass, 277 Mass. 545, 179 N.E. 164;Backoff v. Weiner, Mass., 25 N.E.2d 718.

The auditor's report was evidence of the following facts: The defendant was not the owner of record of the tenement house in question at the time of the injury. But the defendant had previously held title to it as foreclosed property. The house had then been conveyed by the defendant to Oscar Kessler on November 28, 1934, and Kessler had given the defendant a mortgage for the whole purchase price. Kessler conveyed the house to Liberty Realty Trust, J. Kessler, trustee, on February 1, 1936, and at the time of the injury the title stood of record in the name of that trust. But about September, 1936, that trust ceased to concern itself about the house. Thereafter, Myer Swartz managed the house and collected the rents. On some occasions he purported to act for Meridian Realty Trust, of which he was manager and had full control.

The mortgage on the house in question is one of more than twenty-four hundred mortgage loans held by the defendant. Before the business depression, which began in 1929, foreclosures were rare. Since 1935 the defendant and other savings banks have had many defaults in the payment of interest, taxes and insurance. Foreclosures began to be numerous in 1936. Real estate could not be sold for the amounts that the defendant had lawfully lent upon it. Other savings banks had the same experience. If the defendant should buy at a foreclosure sale, it could not sell for enough to discharge the loan, and the list of foreclosed property shown in its annual report would be enlarged. A large volume of such property would impair the public standing of the defendant. Moreover, the law requires that foreclosed property be sold within five years, unless the commissioner of banks should extend the time. G.L. (Ter.Ed.) c. 168, § 54, Twelfth, St.1937, c. 274, § 2.

The defendant adopted a policy of avoiding foreclosure whenever possible, by requiring mortgagors to bring in to the defendant the entire income as a suspense account and by using the income to pay the current expenses of the property, and interest and principal on the mortgages so far as possible. In that way foreclosure was avoided. When foreclosure had taken place, the defendant found some irresponsible person to take a deed and to give back a new mortgage for as much as the value of the property, and repeated the process when he in turn defaulted. Thus the defendant avoided carrying title to the property in its own name for any considerable time.

In carrying out this policy of avoiding taking title, the defendant made use of a real estate broker named Myer Swartz, and the Meridian Realty Trust which he managed and controlled, though his daughter Bertha Swartz was nominally trustee and one Bessie Fisher was nominally beneficiary. The defendant made no distinction between Swartz and the trust. Often Swartz took deeds of foreclosed property in the name of the trust, and caused mortgages to be given back to the defendant for the whole purchase price. In other instances Swartz or the trust took charge of property on which the...

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4 cases
  • Auld v. Jordan
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 5, 1960
    ...v. Standen, 302 Mass. 4, 6, 18 N.E.2d 356; Backoff v. Weiner, 305 Mass. 375, 377, 25 N.E.2d 718; Skolnick v. East Boston Sav. Bank, 307 Mass. 1, 3, 29 N.E.2d 585, 130 A.L.R. 1519; Hall, Landlord and Tenant (Adams and Wadsworth, 4th ed.) § 227. Cf. Ferrigno v. O'Connell, 315 Mass. 536, 537, ......
  • Caliri v. Cmty. Bank., 11-P-1813
    • United States
    • Appeals Court of Massachusetts
    • December 12, 2012
    ...Bank v. Hanson, 15 Mass. App. Ct. 953, 953-954 (1983) and other cases cited in the moving party's brief[.] Skolnick v. East Boston Savings Bank, 307 Mass. 1, 6 (1940), relied upon by the plaintiff does not vary from the above-cited principle; the facts in Skolnick are unique and far removed......
  • Kuhn v. Kaufman
    • United States
    • Massachusetts Superior Court
    • January 12, 2001
    ...rights and duties are acquired by the mortgagee in possession even if entry into possession is ineffective to foreclose the mortgage. Id. On face, the plaintiffs' complaint alleges outright ownership of the lots at issue in addition to default on the mortgage and lawful entry onto the prope......
  • Skolnick v. East Boston Sav. Bank
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 17, 1940

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