5 N.J. Misc. 27 | N.J. | 1926
This .is an appeal from a judgment in the First District Court of Newark, entered for the plaintiffs, upon a verdict rendered by a jury against the defendant in the sum of $240, at the direction of the court.
The action was for rent for leased premises, at the rate of $80 per month, for the months of July, August and September. The lease was dated January 1st, 1925, and ran to September 30th, 1925, at the gross rental of $720, payable
The proofs upon which the claim of constructive eviction was based were that the tenant occupied as the rented premises an apartment on the second floor of a four-story apartment building; that on June 15th, 1925, a drain pipe from the roof of the building became clogged, accumulating a large quantity of water which leaked through the roof, soaking the walls and ceiling of his bedroom, and making it impossible for him to sleep there; that the plaintiffs refused to remedy the condition, whereupon the tenant moved out of the property, and turned the key over to the wife of the superintendent of the building, she being in charge while the superintendent was in the hospital.
In Meeker v. Spalsbury, 66 N. J. L. 63, in a careful opinion by Justice Collins, quoting from other authorities therein cited, it is said: “That eviction must be not a mere trespass but something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises; * * * and more fully and accurately defined * * * as an act of a permanent character done by the landlord in order to deprive, and which had the effect of depriving, the tenant of the use of the thing demised or of a part of it.”
It will thus be seen that the facts proven fall short of meeting these requirements. The obstruction to the tenant's enjoyment of the property was temporary, and certainly not designed by the landlords, but was a fortuitous event resulting from the leaking of the roof.
On the second point involved we reach a different conclusion. The proofs offered to support the claim that there had been a surrender of the premises, and an acceptance by the landlords, were that when the tenant moved out on June 30th, 1925, he turned the key over to the wife of the superintendent of the building, she being in charge in his absence,
The result we reach is that the direction of a verdict in favor of the plaintiff was erroneous, and that the case should be reversed, to the end that the question of a termination of the lease had been effected by the voluntary surrender by the tenant, and its acceptance by the landlords, may be passed upon by a jury.
The judgment is reversed.