On appeal from the Supreme Court (Morris county).
For the appellant, Harry A. Stiles.
For the respondent, H. Warner Doremus.
The opinion of the court was delivered by
TRENCHARD, J. This is defendant's appeal from a summary judgment entered after the defense had been stricken out.
The complaint set forth a written lease of premises from plaintiff to defendant for the term of one year from and after October 1st, 1927, at a rental payable in equal monthly payments in advance on the first day of every month during the term; that the defendant, without any further oral or written lease between them, occupied the premises and paid the rent reserved in the lease, until and including September, 1930, and vacated and abandoned the premises on October 1st, 1930; that the premises thereafter remained vacant, and that it was for subsequent unpaid rent that this suit was brought.
The answer of the defendant, apart from a general denial, set up two defenses as follows:
"1. The plaintiff refused to accept a proposed tenant and minimize the damages, but permitted the premises to become vacant.
"2. The defendant surrendered the premises to plaintiff prior to October 1st, 1930, and the plaintiff agreed to surrender and accepted the premises, relieving the defendant of further liability under his tenancy."
The plaintiff gave notice of a motion to strike out the answer and for summary judgment on the ground that the answer was frivolous and sham and set up no defense.
Both sides submitted affidavits, and Mr. Justice Bodine struck out the answer and defenses on the ground that they were sham or frivolous and ordered final judgment, and we think rightly.
The complaint and affidavits show, without dispute, that the tenant, by holding over and paying rent reserved in the lease, became a tenant from year to year, and that he did not give the requisite notice to terminate that ...