180 A. 234 | N.J. | 1935
This appeal brings up for review a judgment of $90 recovered by the plaintiff below against the defendant below in the District Court of the city of Bayonne.
The case was tried by the judge of the court sitting without a jury. Counsel for the respective parties were unable to agree upon the state of case. Thus the trial judge settled and certified the same for this appeal.
The state of case, so certified, discloses that the plaintiff sued the defendant for two months' rent (April and May, 1934) which the plaintiff alleged was due under the written lease with the defendant, dated March 1st, 1934, for the term of one year, at the rental payment of $45 a month. Defendant entered into possession and paid the March rent. The defenses to the suit were that plaintiff, on March 12th, 1934, evicted the defendant from the premises; that plaintiff *334 took possession thereof and padlocked them; that as a result of the plaintiff's action, the defendant was deprived of the use of the premises for about one and one-half hours.
The plaintiff proved the lease and the defendant's failure to pay the rent. Defendant himself testified that he conducted a butcher shop in the premises in question. That on March 10th, 1934, he "closed up the store with the intention of giving it upas it did not pay." That on that day he removed all perishable merchandise from the premises but that the fixtures still remained therein; that on March 12th, 1934, the store was not open for business; that he gave the key to the store to one, Howard Redford, an employe of the Claude-Neon Sign Company, with directions to remove a Neon sign from the premises; that he did not abandon the premises and still retained the key for it; that at no time did he notify the plaintiff that he was vacating the premises. The proof further indicates that while Redford was in the premises about nine-thirty A.M. of March 12th, 1934, dismantling the sign, plaintiff's agent, his son, came in and said that the plaintiff was taking possession of the premises and showed Redford some papers and a badge; the latter left the premises whereupon the son posted a paper on the door and padlocked the premises. The posting of the paper on the door and the padlocking of the premises were corroborated. It further appears that Peter Karrelick, another employe of the defendant, came to the premises to ascertain why Redford had been put out and the premises padlock. After some discussion with the son the padlock was removed between ten-thirty A.M. and eleven A.M. of the same day, March 12th, 1934. The son testified for the plaintiff that he was his father's agent; that he flashed no badge and that the paper posted on the door, which was not produced, Karrelick claimed that the son took it away, was a mere notice for them to come to see the plaintiff; that the only reason the premises were padlocked, for the short time already stated, was because plaintiff thought that the fixtures were being removed by Redford without authority and to protect the contents from being stolen; that when Redford and Karrelick returned the *335 padlock was removed and defendant's representatives were permitted to enter the premises.
Under this posture of the proof it was open to the trial judge, sitting without a jury, to find as he did (Dolton v. Sickel,
Appellant, however, writes four specification of determinations with which he is dissatisfied in point of law. They are as follows: (1) At the close of the plaintiff's case, the appellant's attorney moved for a direction of the verdict but the trial court erroneously denied the motion. An exception was asked for and granted by the court. (2) The trial court erroneously refused to find as a matter of law, that there had been an eviction by the plaintiff, thereby suspending the rent demanded by the plaintiff. (3) There was no basis in fact for the finding by the court that there had been no eviction. (4) As a matter of law the eviction by the plaintiff of the defendant suspended the payment of the rent claimed in the state of demand.
We are met, in limine, with the contention that appellant raised no objection at any time during the trial; no legal questions were presented to the court below for its ruling; that therefore there is nothing for this court to consider. The meager record submitted does not disclose objections or motions, if any, made during the trial. The state of case, as certified by the trial judge, does, however, disclose the defenses raised and the court's consideration and disposition thereof. It is well settled that, under chapter 62 (Pamph. L. 1916, p. 109), applicable to District Courts, a party aggrieved by a judgment awarded by a court in a cause tried *336
without a jury, as here, may review any errors made by the court in giving final judgment without a request for a specific finding of law or fact, or law and fact, and objection to an adverse finding, provided such errors shall be specified in the grounds of appeal filed and served. We think that the alleged erroneous disposition of the case by the trial judge is sufficiently embodied within the herein filed specification of determinations; it is presumed that they were properly served. Smith v.Cruse,
This court, of course, does not review findings upon questions of fact beyond inquiry whether there was any legal evidence upon which the findings may be based. Portley v. Hudson andManhattan Railroad Co.,
Did the trial judge, however, correctly apply the law applicable to the facts as found by him? We think that he did.
There surely was no surrender of the premises. For "a surrender by act and operation of law arises only when the minds of the parties to a lease concur in the common intent of relinquishing the relation of landlord and tenant and the parties execute that intent by acts which are tantamount to a stipulation to put an end to the lease. Meeker v. Spalsbury,
Nor was there an eviction which would operate to suspend the payment of rent under the lease. An eviction has been defined as "an act of a permanent character done by the landlord in order to deprive, and which has the effect of depriving, the tenant of the use of the thing demised, or a part of it." Upton v.Townsend, 17 C.B. 30; Morris v. Kettle,
To constitute an abandonment of the premises means "an absolute relinquishment" of the premises by the tenant. It is "made up of two elements, act and intention." 1 C.J. 5, 6. In ClintonAmusement and Imp. Co. v. Dranow,
We think that the proofs fully support the judgment reached by the trial judge; we so hold.
Judgment is affirmed, with costs.