Stern v. Wagenheim

• Decision Date: 08 January 1929
• Docket Number: No. 55.,55.
• Citation: 144 A. 118
• Parties: STERN v. WAGENHEIM.
• Court: New Jersey Supreme Court

144 A. 118

STERN

v. WAGENHEIM.

No. 55.

Supreme Court of New Jersey.

Jan. 8, 1929.

Syllabus by the Court.

Appeal from Court of Common Pleas, Atlantic County.

Action by Jacob Stern against Meyer Wagenheim. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued May term, 1928, before GUMMERE, C. J., and PARKER and KATZENBACH, JJ.

Samuel Morris, of Atlantic City, for appellant.

Thompson & Hanstein, of Atlantic City, for respondent.

PARKER, J. The appellant, defendant below, was a tenant of the plaintiff under a lease in writing which provided that the tenant should pay all excess water bills, and the suit was to recover an alleged excess water bill which defendant refused to pay. The defense was that the meter was connected with a vacant apartment over defendant's premises, for which defendant was not responsible; and the verdict of the jury turned on their finding on this question of fact. They found for the plaintiff, and it is claimed for appellant that the comments of the court on the testimony tending to establish the alleged leakage in the vacant apartment were prejudicial error. This is the only ground urged for reversal.

The testimony for defendant indicated that when a water bill for $682.89 came in, defendant went to the water office and saw one of the officials named McNally, who had the meter tested and found it correct, but discovered that it continued to register with all taps closed; and McNally said to defendant: "You had better get a plumber; you have a leak somewhere." Defendant did not get a plumber, nor did he, so far as appears, communicate with the landlord; but he and his bookkeeper went upstairs, took a locked outer door off its hinges, entered the apartment, and discovered, as they claimed, several leaky fixtures which would account for the registration of the meter. On cross-examination of defendant, the following occurred:

"The Court: What right did you have to take the door down and go into those premises that belonged to somebody else?

"The Witness: Well, I wanted to see where the leak is.

"The Court: Why didn't you have the man do that so that there couldn't be any question as to whether or not you turned the spigots on up there?

"The Witness: My judgment wasn't good on that at that time. As soon as I seen that meter registering, the moment I didn't think. I says, 'Joe, the best thing you can do is go upstairs.' I had to go to Philadelphia. I said, 'You better see where that leak is before I leave.'

"Mr. Morris: Why didn't you take a plumber?

"The Witness: That was my positive error there. I didn't think it was so serious. I was disappointed because I have ice machines in all my stores, and the little business they done there, I thought it was an awful bill."

The language of the charge plainly shows that the court placed little credence in the defendant's story, and exception was taken to the part of the charge inclosed in parenthesis below. As to this, it is argued in the brief that defendant's testimony "is assuredly entitled to the credence which the jury would afford it," which, of course, is true; and that "his testimony was entitled to as much weight and consideration before the jury as the testimony of any other witness," which is not necessarily true, as he was an interested party, and the jury would be justified in making allowance for that fact. The question is whether the court overstepped the limits of legitimate comment.

The charge in full, omitting a formal introductory paragraph, was as follows:

"Under the lease the plaintiff would be entitled to recover whatever amount that he was compelled to pay as excess water rent in these premises, because the lease provides that a tenant shall be liable for the excess water rent, and the defendant, it is admitted in the case, was the tenant during the time this excess water was consumed.

"The defendant, however, denies that he is liable for the excess water rent or for all of it, upon the ground that several pipes on a portion of the premises, over which he as a tenant had no control, were leaking and consuming a portion or all of the water for which he is charged for excess water. Of course, if that be true, why the defendant would not be responsible for whatever water that leaked out of the pipes in the portion of the premises over which he had no control.

"The plaintiff in this case is required to establish his right to recovery by the fair preponderance of the evidence. If he has satisfied you by a fair preponderance of the evidence that this water was consumed by the tenant, then, of course, your verdict should be for the plaintiff for the full amount. On the other hand, if you believe, as the defense alleges, that all of this water or a portion of it was used by the leakage of the pipes upstairs, then, of course, it becomes your province and your duty to determine as near as you can whatever portion, if any, of this water for which the excess charge is made was used by the tenant or was used in the leaking out of the pipes upstairs.

("The testimony of the defense that the tenant and some of his employes went upstairs and took the door off and went into the premises and found the pipes leaking is not, in the opinion of the Court, very impressive testimony. It seems to the Court that it was the duty of this tenant if he wanted to supply the very best evidence to this Court to have taken in with him some disinterested person or some plumber so that the exact condition of those leaking spigots upstairs may have been testified to by a plumber and the washers that would require—or necessitate the leaking should have been brought into court so that this jury and this Court may determine whether or not there was an actual leakage or whether or not these spigots were turned on by some one when the excess water bill was presented to the tenant.")

"As I said before, if the plaintiff has satisfied you by the fair preponderance of the evidence, why, then, of course, you should render a verdict for the plaintiff. On the other hand, if you believe the defendant's story that all of this water or a portion of it escaped through the leaking pipes upstairs, it is your duty to determine what amount, if any, did escape through the leaking pipes and allow such a credit upon the claim of the plaintiff, and if you determine that all of the water leaked upstairs then your verdict would be a verdict for the defendant."

It will be observed that the paragraph excepted to, and inclosed in parenthesis above, is sandwiched between two other parts of the charge, in each of which the jury are distinctly told that if they believe defendant's story there should be a verdict for defendant or a reduction of the claim, as the case may be; so it is clear that the credibility of that story was left to them. Stress is laid on the use of the word "duty" as requiring the jury to find against the defendant because he had failed to take a disinterested person or a plumber, and bring the washers into court. But the context plainly indicates that no such control was intended, but only the view of the court on the weight and sufficiency of the evidence, which,...