Stewart v. Childs Co.

• Decision Date: 16 November 1914
• Docket Number: No. 64.,64.
• Citation: 92 A. 392,86 N.J.L. 648
• Parties: STEWART v. CHILDS CO.
• Court: New Jersey Supreme Court

92 A. 392

86 N.J.L. 648

STEWART

v. CHILDS CO.

No. 64.

Court of Errors and Appeals of New Jersey.

Nov. 16, 1914.

(Syllabus by the Court.)

Appeal from Circuit Court, Hudson County.

Action by Thomas J. Stewart against the Childs Company. From judgment for plaintiff, defendant appeals. Affirmed.

Lum, Tamblyn & Colyer, of Newark, and William D. Edwards, of Jersey City, for appellant.

Vredenburgh, Wall & Carey, of Jersey City, for appellee.

BLACK, J. The error complained of by the appellant in this case is the ruling of the trial court directing a verdict for the plaintiff. The suit was instituted in the Hudson circuit court to recover rent, due under a written lease for the premises No. 53 Newark avenue, Jersey City. The lease was dated the 26th day of December, 1001; the term commencing on the 1st day of February, 1902, ending on the 1st day of May, 1922, at the yearly rental of $3,000. The lease contained these covenants: By the tenant: "That the tenant shall pay the rent aforesaid as the same shall fall due." By the landlord: "The basement shall be waterproof, and not less than 7 feet high. And he does hereby guarantee that he will at all times during the said lease keep the said cellar waterproof at his own expense." The evidence of the defendant showed that there was a breach of the above covenant on the part of the landlord to keep the cellar waterproof during the term of the lease. The trial court held that the two covenants were independent. The breach of the covenant to keep the cellar waterproof was not a defense to an action for rent. The judge at the trial, therefore, directed a verdict for $4,350 in favor of the plaintiff. It is this ruling of the trial judge which the defendant alleges is erroneous in law, and seeks to have the judgment reversed. The defendant contends, to use the words of the brief, that the failure of the landlord to do what is lawfully required of him, either by the terms of the lease or otherwise, which renders the demised premises unfit for the purpose for which they are leased, or which seriously interferes with the beneficial enjoyment thereof, in consequence of which the tenant abandons the premises, constitutes an eviction by construction of law, and releases the tenant from the obligation under the lease to pay rent accruing thereafter, while the plaintiff contends that the failure by the landlord to perform his guaranty does not constitute an eviction in fact or constructively.

There are numerous cases in this and other jurisdictions illustrating the principle of eviction, both actual and constructive,...