SCHWARTZ v. FEDERAL DEPOSIT INSURANCE CORP., 127 N.J.L. 556 (1942)

23 A.2d 583

ALICE SCHWARTZ, PLAINTIFF-RESPONDENT, v. FEDERAL DEPOSIT INSURANCE CORPORATION, DEFENDANT-APPELLANT.

Court of Errors and Appeals.Argued October 23, 1941 —
Decided January 9, 1942.

1. One who leases a two family house, reserving no right of entry thereto and there being no common halls or stairs is not under a duty to make repairs to a stair light in the tenant’s apartment.

2. Proof that a defective stair light in leased premises has been repaired by a workman admitted by the tenant is not proof of the landlord’s negligence in not sooner making the repair.

3. An agreement in a lease to make repairs does not inure to the benefit of a tenant’s visitor.

4. The landlord’s liability to make repairs in halls and stairs in multiple family dwellings exists because of his control thereof.

5. The assumption of the duty to make repairs requires the exercise of due care.

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On appeal from the Supreme Court, whose opinion is reported i 126 N.J.L. 580.

For the defendant-appellant, Carey Lane (Harry Lane an David A. Pindar).

For the plaintiff-respondent, Nathan Baker.

The opinion of the court was delivered by BODINE, J.

The plaintiff on January 21st, 1940, called on the Elkin family, who leased from the defendant premises at 367 Woodlawn Avenue, Jersey City. The premises in question were the second story portion of a two-family house. It was reached through a separate street door. The staircase rose between two walls and turned towards the top. At this point, the treads varied from full width at one side to zero on the other. At night the stairs were lighted by an electric light. The chain pull had become defective so that when Miss Schwartz was leaving it was impossible to light the fixture for her benefit. She fell and sustained injuries for which she recovered damages.

The proofs clearly indicate that the landlord had not retained control over the staircase in question. Admission to the Elkin’s apartment could be obtained only by their response to a summons by a bell.

In this state, the rule has been settled that the landlord is under no common law duty to make repairs to or maintain leased premises in good order. Heintz v. Bentley, 34 N.J. Eq. 562 Naumberg v. Young, 44 N.J.L. 331; Muller v. Rainear, 45 Id. 520; Lyon v. Buerman, 70 Id. 620.

Further, it has been settled that a breach of a contract to make repairs does not inure to the benefit of a member of the tenant’s household where injury resulted from a defective condition. Eberle v. Productive Building and Loan Association, 119 N.J.L. 393. Much less so to a visitor to a member of the tenant’s family.

We do not read Taylor v. Majestic Building and Loan, 14 N.J. Mis. R. 699, and Dubonowski v. Howard Savings Institute, 124 N.J.L. 368, as imposing liability, except as in

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tenement house cases or like situations, where the landlord has retained to himself control of the approaches, halls and stairways for the common use of occupants and those having lawful occasion to be there. In such instance, the assumption of the duty requires the exercise of due care. So also in instances where the landlord negligently performs a task assumed by him in the repair of the demised premises. Barthelmess v. Bergamo 103 Id. 397.

In the present case, the proofs indicated at the close of the plaintiff’s case that the repairs to the fixture were made after the defendant had been notified of the need of repair. But it is most significant that the proofs also show that the repairman gained admittance only after the tenant’s son had admitted him to the house for that purpose. The fact that repairs were made in this case is not significant as to the control by the landlord, and moreover was not evidence of negligence. Dubonowski v Howard Savings Institute, supra.

The judgment will be reversed, with costs.

For affirmance — PERSKIE, J. 1.

For reversal — THE CHANCELLOR, CHIEF JUSTICE, CASE, BODINE, HEHER, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, THOMPSON, JJ. 11.