Weiss v. I. Zapinsky, Inc.

• Decision Date: 14 February 1961
• Docket Number: No. A--802,A--802
• Parties: Moses WEISS, Plaintiff-Respondent, v. I. ZAPINSKY, INC., a New Jersey corporation, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 351

65 N.J.Super. 351

167 A.2d 802

Moses WEISS, Plaintiff-Respondent, v. I. ZAPINSKY, INC., a New Jersey corporation, Defendant-Appellant.

No. A--802.

Superior Court of New Jersey

Appellate Division.

Argued Feb. 6, 1961.

Decided Feb. 14, 1961.

Jack Ballan, Fair Lawn, for appellant.

Thomas J. Brady, Jersey City, for respondent (Milton, McNulty & Augelli, Jersey City, attorneys; Joseph Keane, Jersey City, of counsel; Thomas J. Brady on the brief).

Before Judges GOLDMANN, FOLEY and HALPERN.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Defendant tenant appeals from a Law Division judgment in plaintiff-landlord's favor on its counterclaim for loss of profits, expenses and damages resulting from an alleged constructive eviction, and granting plaintiff judgment of $4,050 for loss of rentals under the lease. That judgment also awarded defendant $14,106.75 on its counterclaim for damage to goods, wares and merchandise resulting from plaintiff's breach of covenant to repair.

Defendant contends that (1) the trial court's finding that there was no constructive eviction when defendant removed from the premises on March 31, 1958 is against the weight of the evidence; (2) it was error not to permit defendant to introduce evidence of loss of profits allegedly caused by the constructive eviction; (3) plaintiff was not diligent in obtaining a new tenant for the premises; and (4) his attempt to relet the premises 'as is' involved such a change in the terms of his lease with defendant as to free it from liability to him for loss of rentals.

I

Plaintiff owned certain factory premises in West New York which he rented to defendant under a written lease dated June 11, 1957, for a three-year period beginning July 1, 1957. The term rent was $16,200, payable in monthly instalments of $450 on the first of each month, and defendant deposited rent security of $1,350, to be used in payment of the last three months' rent. The lease required plaintiff to make all exterior and structural repairs.

It would appear that shortly before entering into the lease defendant insisted that plaintiff make repairs to the floor and to the roof. Plaintiff hired one Sperduto to do this, paying him $2,550 for the work. The lease was then executed. Apparently Sperduto did not do the work properly; a water problem developed when there was repeated leakage from the roof and skylights. Shortly after July 1, 1957, and continuing through the summer and fall, defendant complained to plaintiff or his agents about these leaks, which were resulting in damage to its goods and interference with its work. Defendant suffered water damage on September 4 and 17, and on November 18, 1957. The trial court found that plaintiff was liable for this damage, totalling $14,106.75. He has not appealed from this part of the judgment.

On October 16, 1957 plaintiff, in an attempt to correct the situation of which defendant complained, entered into a written contract with Sears, Roebuck & Co. to install a new roof. This work was begun about November 12, 1957 and completed about November 20, two days after the last damage suffered by defendant. The trial judge found that there was no evidence of any damage to defendant's materials or chattels after November 18, 1957. In fact, defendant made no claim for any damage loss after that date.

Defendant vacated the premises on notice on March 31, 1958. Plaintiff made various attempts to obtain a new tenant for the property, at first on the same terms as his lease with defendant, but finally on an 'as is' basis (i.e., the new tenant agreed to enter into possession of the premises in its then condition, and to be responsible for all interior and exterior repairs), at a reduced rental of $330 a month for the first year, the rent to be increased by $30 a month in each successive year. The new tenant went into possession April 1, 1959.

Plaintiff sued to recover rents which fell due after March 31, 1958. Defendant denied it had breached the lease and counterclaimed to recover (1) damages suffered by reason of a constructive eviction and (2) the water damage to its goods, wares and merchandise.

The case was tried without a jury under a pretrial order which framed the issues as between plaintiff and defendant (there were third-party complaints with which we are not concerned) as: 'Breach of lease, constructive eviction, negligence, contributory negligence, assumption of risk and damages.' The trial judge, as noted, found in defendant's favor as to the water damage suffered on the three dates mentioned, in the sum of $14,106.75. He found against defendant on the issue of constructive eviction, pointing out that there was no claim or any evidence of water damage to defendant's goods and chattels after November 18, 1957, and that it had continued in possession until April 1, 1958. He also noted that after the new tenant went into possession on April 1, 1959 he had made no complaints of any water seepage or leaks, and nothing had been done to the roof or skylights from the time defendant vacated the premises until the new tenancy commenced. He concluded that the proofs did not establish any action or conduct on the landlord's part such as deprived defendant, or had the effect of depriving it, of the use of the demised premises. Further, the trial judge found that the premises had stayed vacant until April 1, 1959, when the new tenant went into possession at the reduced rental. He allowed the landlord $5,400, at the rate of $450 a month for 12 months, for the time the premises had remained vacant, but held that defendant was not liable for the rent differential between its lease and the new lease after April 1, 1959. Allowing defendant a $1,350 credit (representing the three months' rent deposited with the landlord) against the $5,400 due plaintiff, he entered judgment in plaintiff's favor for $4,050 on the rental claim.

II

Under R.R. 1:5--4(b), on a review of any civil action involving issues of fact not determined by the verdict of a jury, we are authorized to make new or amended findings of fact, first giving due regard to the trial court's opportunity to judge of the credibility of the witnesses. We are not disposed to overturn the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant, and reasonably credible evidence as to offend the interests of justice. N.J. Highway Authority v. J. & F. Holding Co., 40 N.J.Super. 309, 317, 123 A.2d 25 (App.Div.1956). We find substantial evidence in support of the trial judge's findings and conclusions that there was no constructive eviction and defendant breached the lease.

Duncan Development Co. v. Duncan Hardware, Inc., 34 N.J.Super. 293, 294, 112 A.2d 274 (App.Div.1955), is completely dispositive of defendant's claim of constructive eviction. Unless a tenant abandons or vacates the premises as the result of a wrongful act of the landlord, there is no constructive...