98 N.J.L. 157 | N.J. | 1922
The opinion of the court was delivered by
This is an action of ejectment to recover land in Elizabeth, formerly the property of Joseph W. North. ’He devised one-half to his son Herbert S. North in fee, and the other half to Herbert in trust for his daughter Eleanor North Alioth. The precise terms of the will are not now important. Herbert S. North as executor demised the property to Joseph W. North & Son, Inc., a corporation of New
We think that the plaintiff could not recover by virtue of the breach of covenant by the assignment to the Royal Knitting Mills. Mr. North seems to have known of this assignment, and with that knowledge he received checks for the monthly rent or accepted payments made on account of the monthly rent to his bank and to his credit. The receiver only assumed to sell the right, title and interest of the Royal Knitting Mills, and gave notice that whoever purchased purchased at their peril. The situation after the sale by the receiver was that if there had been a breach it had been waived, and the receiver had the right to sell to Meltzer, but Meltzer could have no greater rights under the lease than the right conveyed by the receiver of the Royal Knitting Mills, and that right was subject to the covenants of the lease, since it came by assignment.
There was evidence from which the jury might find, as the judge charged, that there had been an assignment or underletting to the Jersey Knitting Mills, for if there was not their possession was that of mere trespassers. There was also evidence from the receipt of checks for the rent not immediately returned from1 which the jury might infer that any forfeiture by Meltzer had been waived. The trial judge was right in putting this question to the jury, but they found in favor of the landlord. If it was erroneous to fail to show in the postea and judgment that it was this breach that was found in favor of the landlord, that inadvertence can be amended so as to make the judgment conform to the verdict as rendered.
This, we think, is enough to dispose of the case, but counsel argued other causes for reversal, several of which rested
We ñnd no other cause of reversal which is substantial enough to require discussion. Let the judgment be affirmed, with costs.
For affirmance — The Chancellor, Chiee Justice, Swayze, Tkenchard, Parker,' Bergen, Kalisch, Black, Katzenbach, White, Williams. Gardner, Ackerson, Van Buskirk, JJ. 14.
For reversal — None. ■