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Unger v. Kern

Decided: November 2, 1939.

HARRY UNGER, PLAINTIFF-APPELLEE,
v.
HERMANN KERN, DEFENDANT-APPELLANT



On appeal from the District Court of the First Judicial District of the county of Essex.

For the defendant-appellant, Chester Mueller (Arthur E. Dienst, of counsel).

For the plaintiff-appellee, Harry R. Rinsky (Harry Unger, of counsel, pro se).

Before Justices Trenchard, Case and Heher.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. This is an appeal by defendant, Hermann Kern, from a judgment of the District Court of the county of Essex in favor of the plaintiff. The case was tried without a jury.

At the trial it appeared without dispute that the defendant had been a month to month tenant of the plaintiff, his tenancy term beginning on the first day of the month; that he had given proper notice that he would vacate by October 1st, 1938; that he removed during the morning of October 1st, 1938, prior to noon, and that thereafter the premises were vacant during October, 1938. Defendant moved for a nonsuit on the ground that he was not a hold-over tenant, as he vacated before noon on the first day of the month pursuant to the notice given. That motion was denied. At the close of the case and upon the same evidence, the defendant moved for a

directed verdict in his favor. The court ruled that defendant was a hold-over tenant for the month of October, 1938, and entered judgment against him for a month's rent. Proper exceptions were taken and we think were well taken.

A month to month tenancy beginning on the first of the month permits the tenant after proper notice to move any time up to noon on the first day of the following month without becoming a hold-over tenant for the ensuing month.

Thus it has been said that the "tenant was entitled to remain the entire month and was not required to vacate until the last day has passed, nor to give possession until the first of the succeeding month." West v. Wilson, 1 N.J. Mis. R. 389. There the case came up to the Supreme Court by certiorari to review the judgment of the District Court and was decided on July 2d, 1923. After stating that "the only ground upon which such a writ will go in a tenancy case is want of jurisdiction shown either in the affidavit on which the summons is allowed, or in the proof of jurisdictional facts" the court goes on to say:

"The want of jurisdiction is urged because the notice to quit was for the first day of the month while the term expired on the last. There is nothing in this point, as tenant was entitled to remain the entire month and not required to vacate until the last day had ...


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