Spinelli v. Golda

• Decision Date: 11 December 1950
• Docket Number: No. A--45,A--45
• Citation: 77 A.2d 233,6 N.J. 68
• Parties: SPINELLI v. GOLDA et al.
• Court: New Jersey Supreme Court

Page 68

6 N.J. 68

77 A.2d 233

SPINELLI v. GOLDA et al.

No. A--45.

Supreme Court of New Jersey.

Argued Nov. 20, 1950.

Decided Dec. 11, 1950.

Joseph A. Lettieri, Roselle Park, argued the cause for appellant (Michael Breitkopf, Newark, on the brief).

William H. D. Cox, Newark, argued the cause for respondent Vegro Realty Co. (Cox & Walburg, Newark, attorneys).

Alexander Avidan, Newark, argued the cause for respondents Andrew and Walter Golda, individually and trading as Golda's Market (Avidan & Avidan, Newark, attorneys).

The opinion of the court was delivered by

WACHENFELD, J.

The plaintiff sought to recover damages for injuries caused by the falling of a glass window. In June 1946, as she was walking on a public sidewalk past the building known as 397 Myrtle Avenue, Irvington, a plate glass window, used by the tenant for the display of canned goods fell from the building and injured her. It had been cracked and a piece missing at the bottom for several months.

The property was owned by the defendant Vegro Realty Company, a New Jersey corporation, which in December 1944 had leased the store in question to one Henry Golda by a written lease for the term of two years. The lease was marked in evidence and contained the following provisions:

'The tenant is also to keep the plate glass insured at his own expense. The landlord is to pay for the water and the Tenant is to supply his own heat from a separate heater which is in the cellar and connected with his store.

'In the event of any default in any of the covenants and conditions of this lease, the Landlord at its option, may terminate the lease and re-enter and re-possess the premises. The Landlord is to do only structural repairs. The Tenant is to take care of the sidewalk, summer and winter, by keeping it clean and in good order.'

The pretrial order named the tenant and included the specific denial of Andrew and Walter Golda that they were the tenants of the store in question or were in control or operation of it. The plaintiff nevertheless sought to prove her allegation made in the complaint that Andrew Golda and Walter Golda, individually and trading as Golda's Market, owned, operated and controlled the store.

At the close of the plaintiff's proof, the trial court entered a judgment of dismissal in favor of all the defendants. From the judgment so entered the plaintiff appealed to the Appellate Division of the Superior Court, the cause being certified here on our own motion.

The plaintiff asserts that when the owner of premises abutting on a public street leases them to others, with a covenant to make structural repairs, there continues in him a duty to maintain the premises in a safe condition for the protection of persons lawfully using the adjacent sidewalk. She further contends the occupiers of the premises were primarily liable for her injuries and there was error in the dismissal of her action against them. It is alleged also the trial court was in error in ruling that the large plate glass window was not a structural part of the building and in excluding certain expert testimony and evidence of subsequent repairs made by the landlord.

A landlord is not responsible for injuries received by a person walking upon the public sidewalk in front of premises leased to and occupied exclusively by a tenant when the injuries are caused by a defect in the demised premises which occurred during the term of the lease. Handlon v. Copestone Temple Ass'n, 106 N.J.L. 362, 150 A. 386 (E. & A. 1930); Hammer v. Vanderbilt, 116 N.J.L. 574, 185 A. 663 (Sup.Ct.1936); Wright v. A.J.M. Holding Co., 130 N.J.L. 239, 32 A.2d 503 (Sup.Ct.1943).

The plaintiff, admitting the premises in question had been leased by the landlord, points to the covenant whereby he agreed to make 'structural repairs' and contends he thereby retained control over the premises and assumed responsibility, citing Restaino v. Griggs Motor Sales, Inc., 118 N.J.L. 442, 193 A. 543 (Sup.Ct.1937). There the lease provided: 'The tenant does hereby covenant to make all necessary repairs to the interior of the demised premises, during the term of this lease, including all plumbing, painting, store maintenance and the replacing of all broken glass, except showroom plate glass. Should said repairs become necessary because of structural defects, they shall be made by the landlord.'

The court, however, did not construe the term 'structural defects' in that case, holding it was not necessary to decide whether the provisions of the lease imposed the duty of maintenance or repair of the window in question upon the landlord in order to determine the tenant's liability to a third person. It was the duty of the tenant to keep the demised premises in a safe condition and an agreement by the landlord to make repairs did not relieve him from this duty. The opinion cited McKeown v. King, 99 N.J.L. 251, 122 A. 753 (E. & A. 1923), where it was held that while the provisions of the lease fixed the obligation as between the landlord and tenant, nevertheless no provision of the lease could absolve the tenant of liability to third persons arising from his failure to maintain the sidewalk in front of the demised premises in a reasonably safe condition.

The lease in the case presently under consideration provided: 'The landlord is to do only structural repairs,' and the defendant realty company contends this provision of the lease has no application to the maintenance or repair of the plate glass display window as they do not come within the phrase 'structural repairs.'

In Bertsch v. Small Investments, Inc., 4 N.J. 520, 73 A.2d 346 (1950), construing the words 'structural change,' we held they meant such a change as affects a vital and substantial portion of the premises or a change of its characteristic appearance, the fundamental purpose of its creation or the use contemplated.

We recognized Paye v. City of Grosse Pointe, 279 Mich. 254, 271 N.W. 826, 828 (1937), where a building formerly consisting of two stores on the ground floor was altered by removing the partition wall to comprise one store. A plate glass front with a single center door was to replace two entrances. The court found this was not a 'structural change.' It held the proposed alteration did not change 'the form or character of the building, its general appearance, or structural quality; it merely substitutes new windows and doors for the old ones and the size of the store is not enlarged * * * the installation of a new front is not a structural alteration within the meaning of the ordinance.'

The replacing of a broken plate glass display window under the provisions of the lease in the case Sub judice did not, in our opinion, constitute a 'structural repair' as alluded to in the wording of the lease. This conclusion is fortified by the accompanying clause in the lease whereby the tenant agreed 'to keep the plate glass insured at his own expense.' We find no error in the court's conclusion in this respect.

The plaintiff seeks further to establish the liability of the landlord by showing it retained control over the window which caused her injuries, citing Perry v. Levy, 87 N.J.L. 670, 94 A. 569 (E. & A.1915); Taylor v. Majestic Building & Loan Ass'n, 186 A. 594, 14 N.J.Misc. 699 (Sup.Ct.1936); and Dubonowski v. Howard Savings Institution, 124 N.J.L. 368, 12 A.2d 384 (E. & A.1940). She endeavored unsuccessfully to show that subsequent to the accident a new plate glass window was installed and paid for by the defendant Vegro Realty Company. Admitting this would not prove negligence, it was nevertheless insisted the evidence was admissible as showing retention and possession of control over the window in the defendant landlord, thus making its exclusion error.

There are many cases in this State dealing with the landlord's retention of control over a portion of the demised premises and his consequent duty of repair and maintenance: Nauman v. Central & Lafayette Realty Co., Inc., 137 N.J.L. 428, 60 A.2d 242 (Sup.Ct.1948), affirmed 1 N.J. 124, 62 A.2d 218 (1948); Triggiani v. Olive Oil Soap Co., 1 N.J.Super. 55, 62 A.2d 153 (App.Div.1948); Casais v. Meyer L. Shapiro Estate, 136 N.J.L. 304, 55 A.2d 819 (Sup.Ct.1947), affirmed 137 N.J.L. 608, 61 A.2d 238 (E. & A.1948); Bernstein v. Karr, 34 A.2d 651, 22 N.J.Misc. 1 (Cir.Ct.1943); Trondle v. Ward, 129 N.J.L. 179, 28 A.2d 509 (E. & A.1942), Monohan v. Baime, 125 N.J.L. 280, 15 A.2d 599 (E. & A.1940); Millman v. U.S. Mtge. & Title Gty. Co., 121 N.J.L. 28, 1 A.2d 265 (Sup.Ct.1938); McCarthy v. Bye, 118 N.J.L. 94, 191 A. 811 (Sup.Ct.1937); Rizzi v. Ross, 117 N.J.L. 362, 189 A. 110 (E. & A.1937); Hahner v. Bender, 101 N.J.L. 102, 127 A. 202 (E. & A.1925); Kramer v. Lehrhoff, 99 N.J.L. 47, 122 A. 540 (Sup.Ct.1923); Kelly v. Lembeck & Betz Eagle Brewing Co., 86 N.J.L. 471, 92 A. 282 (Sup.Ct.1914), affirmed 87 N.J.L. 696, 94 A. 1102 (E. & A.1915); Buda v. Dzuretzko, 87 N.J.L. 34, 93 A. 83 (Sup.Ct.1915); Connors v. Newton, 77 N.J.L. 125, 71 A. 36 (Sup.Ct.1908); Siggins v. McGill, 72 N.J.L. 263, 62 A. 411, 3 L.R.A., N.S., 316 (E. & A.1905), the most recent, which we do not pass upon, being Daniels v. Brunton, 9 N.J.Super. 294, 76 A.2d 73 (App.Div.1950).

The cases where evidence of subsequent repairs was permitted are generally restricted to apartment and multi-family dwellings occupied by more than one tenant, where the common hallways, stairs, roofs, fire escapes, central heating plants and other facilities are involved, and the question arose as to whether the landlord retained control over such common passageways, facilities or other portions of the building in common use.

Evidence of subsequent repairs has likewise been held admissible to show control of the instrumentality which caused injury where a question was raised as to whether or not it was located on a public easement and where, even though the landlord had demised the entire premises, he retained the continuously availed himself of access...