
    EMIL W. SIEFKEN ET UX., v. CHARLES SOMMERS AND ALVINA BECKMAN.
    Decided November 8, 1923.
    Ejectment — Defendants Claim Contract of Sale and CounterClaim for Damages for Breach Thereof.
    On rule to show cause from the Hudson Circuit.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the rule, Lazarus, Brenner & Vickers.
    
    
      Contra, Wall, Haight, Carey & Hartpence.
    
   Per Curiam.

This is an action in ejectment to recover possession of premises No. 275 Avenue B, in Bayonne, New Jersey, and for mesne profits and damages. There was no dispute as to the possession of defendants, and no defense was put in. Defendants claimed the right to retain possession by virtue of an alleged contract of sale, which they contended plaintiffs had failed to perform, and counter-claimed for damages because of the alleged breach. The lease, which contained an option to purchase, was made by Emil W. Siefken only. The premises were owned by Emil W. Siefken and Emma S. Siefken, his wife, thus creating an estate by the entirety.

The trial court directed a verdict for possession, and this left only the question of damages for which the jury found a verdict of only six cents, which may have been suggested by a misapprehension of the language of the court in that particular.

There was substantial testimony as to the value of the premises given by the plaintiff, and others, and the lease itself presented some evidence upon the subject, while the defense offered no evidence upon the question. That situation left the plaintiff’s affirmative proof unquestioned, and the jury should have so regarded it.

The verdict being against the weight of the evidence the rule is madé absolute.  