Timmons v. Wigboldus.

• Decision Date: 03 September 1948
• Docket Number: No. 26.,26.
• Citation: 137 N.J.L. 733,61 A.2d 269
• Parties: TIMMONS et al. v. WIGBOLDUS.
• Court: New Jersey Supreme Court

137 N.J.L. 733

61 A.2d 269

TIMMONS et al.

v.WIGBOLDUS.

No. 26.

Court of Errors and Appeals of New Jersey.

Sept. 3, 1948.

Appeal from Supreme Court, Passiac Circuit.

Action by Anne Timmons and husband against Jacob Wigboldus for injuries sustained by plaintiff wife in fall on cellar stairway of premises allegedly owned by defendant, and for husband's loss of her services and society. From a judgment of nonsuit, plaintiffs appeal.

Judgment affirmed.

Manfield G. Amlicke, of Passaic, for plaintiffs-appellants.

John C. Barbour, of Hackensack, for defendant-respondent.

McLEAN, Judge.

This is an appeal from a judgment of non-suit directed by the Court at the Passaic County Circuit in favor of the defendant-respondent Jacob Wigboldus, amended to read Jacob P. Wigboldus.

Plaintiffs-appellants, Anne Timmons and Jerome H. Timmons her husband, brought this action against the defendant-respondent Jacob Wigboldus claiming that he was the owner and had control of a certain building and premises known as No. 212 Maple Avenue, in the Borough of Wallington, Bergen County, portions of which said building and premises consisted of two flats rented out to various persons as places of abode; that they, the plaintiffs, on or about the 25th day of August, 1943, occupied the second floor flat of the premises as tenants of the defendant; that defendant retained under his control and possession the entrance to the landing and the stairway leading from the outside of and into the cellar of the premises, and assumed and under took to keep the stairways, entrance and landing reasonably fit and safe for the use of the tenants; that on or about the aforesaid date the plaintiff Anne Timmons, while using the entrance, landing and stairway leading into the cellar, by reason of its rotten, ruinous, dilapidated and deteriorated condition, was violently thrown forward and caused to be precipitated down the stairway. As a result, she suffered severe injuries and sued for resulting damages, and her husband joined in the suit to recover for the loss of her services and society. The defendant entered a general denial, which placed on the plaintiff the burden of establishing the ownership of the property in the defendant as alleged in the complaint. It appears from the record and was admitted on the argument that this was the sole issue at the trial.

The first witness called on the part of the plaintiffs was the defendant. He denied ownership of the property. His testimony was that he had owned it, but that sometime prior to the accident he had conveyed it to his son, Jacob Wigboldus. The son, also called as a witness for the plaintiffs testified to the same effect, and the deed making the conveyance, dated January 12, 1937, recorded January 16, 1937 was introduced in evidence. Defendant's counsel moved a non-suit which was granted, on the ground that there was no proof of ownership in the defendant.

Appellants contend that defendant was precluded as a matter of law from moving for a judgment of non-suit, because in addition to a general denial, he set forth separate defenses in his answer including a defense of contributory negligence; that in so doing he confessed his own negligence and could not argue that he was not the owner of the property. Since separate defenses in an answer are not treated as admissions of the parties, this contention cannot be sustained. Under ...