Taylor v. Majestic Bldg. & Loan Ass'n

• Decision Date: 06 August 1936
• Docket Number: No. 408.,408.
• Citation: 186 A. 594
• Parties: TAYLOR et al. v. MAJESTIC BUILDING & LOAN Ass'n.
• Court: New Jersey Supreme Court

186 A. 594

TAYLOR et al.

v. MAJESTIC BUILDING & LOAN Ass'n.

No. 408.

Supreme Court of New Jersey.

Aug. 6, 1936.

Appeal from District Court of Orange.

Action by Valerie Taylor, an infant, by her next friend, Gustave Taylor, and another, against the Majestic Building & Loan Association. From an adverse judgment, the defendant appeals.

Affirmed.

Argued January term, 1936, before HEHER and PERSKIE, JJ.

Schneider & Schneider, of Newark, for appellant.

Jacob M. Goldberg, of Newark (Morris Barr, of Newark, of counsel), for appellees.

PERSKIE, Justice.

This is defendant's appeal from judgments entered by the trial judge, sitting without a jury, in favor of the infant plaintiff for $100 and in favor of the father for $41 and costs.

The defendant owned a four-story 16-tenant apartment house building in Newark, N.J. The basement apartment was leased by a Mrs. Bowman, with whom the infant plaintiff was temporarily domiciled. In order, to obtain access to this apartment, it was necessary to descend a stairway leading from the sidewalk. While descending this stairway, the infant plaintiff fell, sustaining the injuries for which she now seeks to recover. There was evidence that the step on which the plaintiff fell was loose and rotten and had been in such condition for five or six months prior to the accident; and that the defendant admitting making repairs thereto after the accident. At this posture of the proofs a motion for a nonsuit was made; it was denied. The defendant resists these rulings on the ground that this was no common stairway, and that there was no agreement on the part of the landlord to repair. The plaintiffs admit the nonexistence of any landlord's agreement to repair. They rest their right of action on the theory that the defendant maintained control of the stairway, which was the only means of ingress and egress to and from the apartment.

In the absence of any promise on the part of the landlord to repair, defendant's liability must rest solely on the fact that it retained control and possession of the stairway in question. The court so found. We are then met with the question as to whether there is any legal evidence to support such a finding. If so, the judgment must be sustained. For, as stated in Portley v. Hudson & Manhattan R. Co., Ill N.J.Law, 204, 168 A. 184, 185, affirmed 113 N.J.Law, 13, 172 A. 384, "this court will not review the findings of the district court upon questions of fact beyond inquiring whether there was any legal evidence upon which the findings may be based." See, also, Doolittle v. Hundert Mark (Sup.) 88 N. J.Law, 515, 97 A. 47. Evidence was adduced to show that repairs to this stairway were made subsequent to the accident. This, though not evidence of negligence, since it may be but the action of a prudent man in taking steps to prevent the recurrence of an event he had no reason to foresee in the first instance, does tend to show that control and possession of the premises remained in the landlord. Perry v. Levy, 87 N.J.Law, 670, 94 A. 569. It does, moreover, tend to show that the stairway was not a part of the leased premises, for apparently the landlord was not deprived of its right of entry to make the repairs. Its right of entry and control over the damaged premises rendered it liable for injuries caused by the defect. Siggins v. McGill, 72 N.J.Law, 263, 264, et seq., 62 A. 411, 3 L.R.A.(N.S.) 316, 111 Am.St.Rep. 666; Gillvon v. Reilly, 50 N. J.Law, 26, 11 A. 481.

It is, of course, the well-established law of this state, as set forth in Bolitho v. Mintz, 106...