For the prosecutor, Daniel D. Loeb.
For the respondent, Harry Kay.
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The writ of certiorari (Section 106, District Court act), brings up for review the proceedings had, in the First District Court of the city of Jersey City, wherein Joseph Friedlander, a tenant, charged his landlord, Louis Grand, with the violation of the provisions of the act concerning forcible entry and detainer and more particularly, sections 95, 96 and 97 thereof (District Courts, 2 Comp. Stat. 1709-1910, p. 1984), which proceedings resulted in favor of the tenant.
It is urged, in limine, that the District Court was without jurisdiction to hear the cause for the reason that an action for forcible entry and detainer cannot be instituted by a tenant against his landlord.
In support of that contention prosecutor relies on a line of cases of which Miller v. Kutchinski, 92 N.J.L. 97; 105 A. 20, and Houghton v. Potter, 23 N.J.L. 338, are typical.
Before proceeding to the consideration and determination of this contention, which in our opinion is untenable, it is of importance to make the following observation. It is this: The prototype of sections 95 to 99, inclusive, of the District Court act in forcible entry and detainer cases are sections 1 to 5, inclusive, of the act entitled "An act concerning forcible entries and detainers" (Rev. 1877, page 429; 2 Comp. Stat. 1709-1910, p. 2598), and that section 5 of the last mentioned statute corresponds to section 99 of the District Court act.
With these observations, plus the fact that the proceedings in the instant case were instituted under sections 95 to 97 of the District Court act, a mere reading of the acts indicates that the contention of the prosecutor is without merit. Under section 5 of the act, Revision of 1877, concerning forcible entries and detainers, it is provided "that if any tenant * * * holds over any lands * * * he shall be guilty of an unlawful detainer." Whereas, in sections 96 to 97 of the District Court act the proceedings are not so restricted. They are directed in each instance to proceedings against "any person." See Seidman v. John Craven & Sons Co., 6 N.J. Mis. R. 1062; 143 A. 726.
It is true that in the case of Miller v. Kutchinski, supra, this court held that, since the object of the act was to give a summary and easy remedy to a landlord whose possession was unlawfully detained from him (Houghton v. Potter, supra), the act concerning forcible entries and detainers (Revision of 1877), does not confer the right upon a tenant to bring an action against his ...