Albertson & Young Co. v. Coty , 35 Vroom 713 ( 1900 )

The opinion of the court was delivered by

Voorhees, J.

The writ of error in this matter brings up a judgment of nonsuit entered in the Atlantic Circuit in an action of ejectment. As nearly as can be ascertained from the printed case, one Julius Coty, husband of the defendant below, was, in or about the year 1884, in lawful possession •of the premises in dispute, viz., Nos. 2023 and 2025 Atlantic .avenue, Atlantic City, in which he lived and conducted business until 1895, when a corporation was formed under the name of the Coty & Albertson Company, which purchased the said business, and, with the consent of the said Julius Coty, took possession of the lower floor, or store part of said building, the said Coty still retaining possession of part of the-second floor, to which the only means of entrance was through the store. On April 5th, 1897, the right of possession of the said Julius Coty having expired, the said company leased the-said premises from Lorenzo Bye, the then owner, for the term of five years. Afterwards, the name of the said company was duly changed to the Albertson & Young Company. Julius Coty, it appears, remained in possession of the rooms-over the store for some little time after the execution of the above-mentioned lease. He then left Atlantic City, and it would appear from the evidence that his present residence is unknown. On March 28th, 1899, Julius Coty, notified the-said last-named corporation in writing that he thereby surrendered possession of so much of said building as he had formerly occupied, and refused to be responsible for any further payments on account of rents for the same.

The defendant below, Maria E. Coty, had a key to the door of the store and continued to occupy the said rooms, going-in and out by way of the store. The plaintiff, in writing,, demanded possession of so much of said building as the defendant occupied. She refused to give up possession, whereupon this suit in ejectment was brought, and upon the termination of the case below the court ordered a nonsuit.

I am of the opinion that a sufficient case was made by the plaintiff to go to a jury and that the judgment of nonsuit should be reversed.

For affirmance—None.

For reversal—Magie (Chancellor), Depue (Chief Justice), Van Syckel, Dixon, Garrison, Lippincott, Gummere, Bogert, Hendrickson, Adams, Vredenburgh, Voorhees. 12.