On appeal from the Passaic County Circuit Court.
For the appellant, E. Robert Coven.
For the respondent, Edward F. Merrey.
The opinion of the court was delivered by
HEHER, J. The primary question presented in this action in replevin is whether there was any evidence to sustain the judgment awarding to defendant the goods taken under the writ, and directing, in default thereof, an assignment of the bond to it. The issue was submitted to and determined by Judge Losey, sitting in the Circuit Court. A jury trial was waived.
These are the pertinent facts: On March 30th, 1931, the defendant corporation, by an indenture in writing, leased floor space in a manufacturing plant owned by it, situate in the city of Paterson, to one Samuel Cannel, trading as S. Cannel Silk Company, for a term expiring on June 30th, 1934, at a fixed annual rental, payable in monthly installments. In October, 1931, Cannel advised the defendant that he had taken a partner in the business, and had transferred his interest in the lease to the Candor Silk Company, Inc., a body corporate; and it was agreed that thereafter that concern would be billed for the rent. This course was pursued, and the subsequent payments of rent came from the Candor company. On May 22d, 1934, machinery owned by the Candor Company, and contained in the leased premises, was sold to plaintiff by the sheriff of the county of Passaic under a writ of execution issued upon a judgment recovered against that corporation. Rent for the six months immediately preceding the day of sale was in arrears; and on the following day, May 23d, the respondent landlord executed and delivered a warrant empowering its bailiff, nominated therein, "to distrain the goods and chattels of Candor Silk Company, Inc., * * *, formerly Samuel Cannel, trading as S. Cannel Silk Company, tenant," contained in the leased premises, for the sum of $2,052.74, the rent in arrears for the mentioned period plus sums due for electric current furnished by the landlord under the terms of the lease, and to cause the same to be appraised and sold for the satisfaction of the rent so in arrears, and the distress, appraisement and sale charges, "and to do all other acts and things which may by the said landlord be lawfully done for the collection of said rent by virtue of 'An act concerning
distresses' (Revision), approved March 27th, 1874, and any and all other statutes and laws." Pursuant to this authority the sheriff distrained, and gave notice. Thereupon plaintiff demanded possession of the goods distrained, and upon compliance being refused, sued out the writ of replevin.
The first insistence of appellant is that the chattels in question were not the property "of the defendant's tenant, and therefore, were not subject to the lien of the defendant for rent. * * *" But there was evidence tending to establish an assignment of the lessee's interest in the lease to the Candor company, and a new tenancy agreement between the assignee and the landlord. The evidence in this regard was uncontradicted; but in the contrary event, the finding of the requisite relationship would not be disturbed. It is elementary that at law findings of fact on conflicting evidence will not be reviewed on appeal.
Appellant does not assert a parol assignment of the lease in violation of paragraph 2 of the statute of frauds. 2 Comp. Stat. 1910, p. 2610. Even so, there was an executed common intent to terminate the contractual relationship between the landlord and the original tenant, and to create a new tenancy between the former and the assignee. There was, in substance and effect, a surrender of the original tenant's lease by act and operation of law, and the cited provision of the statute of frauds is therefore not applicable. Miller v. Dennis, 68 N.J.L. 320; Meeker v. Spalsbury, 66 Id. 60; Ganz v. Elfenbein, 94 Id. 445.
Secondly, appellant maintains that, assuming the relationship of landlord and tenant, the levy and sale by the sheriff constituted a "removal" of the goods within the intendment of paragraph 4 of the Landlord and Tenant act, Revision of 1877 (3 Comp. Stat., p. 3066), imposing upon the party at whose suit an execution, attachment or other process is sued out the obligation to pay the landlord the rent in arrears, not to exceed one year's, "before the removal of such goods from off the said premises," and that, therefore, the landlord acquired no lien by virtue of the distress warrant. Reliance is placed upon Ryerson v. Quackenbush, 26 N.J.L. 236; Van Horn v. Goken, 41 Id. 499; Bryson v. Miller Realty
Co., 108 Id. 434; Woodside v. Adams, 40 Id. 417; Schwartz v. King Realty, ...