On appeal from the Passaic County Circuit Court.
For the appellant, Peter Cohn.
For the respondent, Abram I. Bluestein.
The opinion of the court was delivered by
TRENCHARD, J. This action was brought by a landlord to recover rent from his tenant, the defendant below.
The plaintiff made a motion to strike out the answer and special defense to the third count (the other counts having been previously discontinued) and for summary judgment. That motion prevailed and this is the appeal of the defendant from that summary judgment.
The pleadings, and the affidavit filed by the plaintiff on his motion, disclose that the pertinent and undisputed facts were these and only these: On July 1st, 1924, the defendant
entered into possession of the plaintiff's premises under a void lease (void under the statute of frauds). He remained in the premises until January 1st, 1931, On October 1st, 1930, the defendant gave the plaintiff three months' notice that he was going to quit the premises on January 1st, 1931.
The plaintiff's contention was and is that the notice was insufficient in that the notice given by the tenant (defendant) was required to be for six months, expiring at the end of the current year of the tenancy.
That contention the trial judge found to be sound, and we think rightly.
Where, as here, a tenant has entered premises under a void lease, without more, the tenancy is a tenancy at will. Den v. Drake, 14 N.J.L. 523; Sayre v. Roseville Motor Co., 85 Id. 10. See, also, Comp. Stat., p. 2610, § 1.
In order for a tenant at will to terminate the tenancy it is necessary for him to give to his landlord six months notice of his intention to quit, expiring at the end of the current year of the tenancy, when such requirement has not been otherwise modified by the agreement of ...