On plaintiff's appeal from the Hudson County Circuit Court.
For the appellant, David Saperstein.
Before Gummere, Chief Justice, and Justices Parker and Case.
The opinion of the court was delivered by
PARKER, J. This case was argued for the appellant but the attorney for the defendant, not being a counselor-at-law, could not be heard in reply; and the court expressed its willingness to accept a brief for respondent later, if such brief was signed by a counselor-at-law. No brief of any kind for the respondent has been received.
The suit is by a landlord against her former tenant for rent alleged to be due under the terms of the lease, and unpaid. The lease itself was in writing, drawn on a New York form, and is voluminous and complicated in its provisions. However, the point in issue is comparatively simple.
The term created by the lease was one year beginning with the first day of November. The tenant moved out on the twenty-fourth of October preceding the expiration of this original term; but the claim of the landlord was that by reason of certain provisions in the lease, it had been automatically renewed for a year, and consequently the tenant was liable for the rent after he had moved out. The suit is for five months' rent, and we gather from the papers laid before us that this is for the period that the demised premises remained vacant after the removal of the tenant.
The provision in the lease relied on by the landlord is as follows, disregarding immaterial matters:
"11th. This lease and every renewal thereof shall be renewed for a further term as provided in this paragraph * * *. (1) If the term of this lease be for one or more years, without any additional odd months, it and every renewal thereof shall be renewed for a further term of a like number of years; * * *. Either the landlord or the tenant shall have the right to cancel any such renewal thereof by giving to the other written notice by registered letter with return card of such cancellation at least four months preceding the expiration of the then existing term. * * *."
The complaint was based upon the terms of the lease and the foregoing renewal clause and the failure of the tenant to give the notice required thereby, by reason whereof there was, as the landlord claimed, an automatic renewal for one year. The answer set up three defenses. The first was a general denial; the second was tantamount to a demurrer; the third set up res judicata in that the same claim had already been presented to a District Court and determined against the plaintiff. This last was eliminated and needs no further notice. There was a motion on the part of the plaintiff for summary judgment and this motion was denied, the court holding that the terms of the lease were ambiguous and that the testimony of the parties should be taken to determine their true intent concerning the lease. The third defense, however, was struck out. The case came on for trial before another judge who stated that he felt bound to follow the ruling previously made, and therefore left to the jury, among other things, the questions whether there was any ambiguity about the provisions for renewal (ground 5), whether it appeared from the testimony that the parties agreed to a renewal (ground 8), and instructed them (ground 6) that if there was an agreement to renew, plaintiff was entitled to her rent unless the jury found from the testimony that the parties agreed, notwithstanding the lease, that the tenant was released from this renewal. There are other grounds, but we need not stop to consider them except, perhaps, that the court refused to direct a verdict for the plaintiff.
We are unable to perceive any ambiguity in the lease with respect to this matter of renewal. The renewal clause is clear enough. At the argument it was suggested that there might be some question as to whether a clause providing indefinite renewals ad infinitum to be terminated only by notice was a valid agreement; but after consideration of the matter, we see no invalidity therein. All that the clause amounts to is this, that the parties shall be taken and considered as consenting to a renewal for another year without further definite action to that effect unless ...