For the plaintiff-respondent, David Cohn.
For the defendant-prosecutor, E. Gustave Greenwald.
Before Justices Case, Donges and Colie.
The opinion of the court was delivered by
CASE, J. This certiorari is to review a judgment of the First District Court of the City of Paterson summarily dispossessing a tenant. Therefore, the only question which, under our practice, we shall consider on certiorari is whether the District Court had jurisdiction to award the judgment. Degenring v. Kimble, 115 N.J.L. 379; Moreland v. Steen, 89 N.J.L. 383. The affidavit upon which the summons issued alleged a default in the payment of rent, the failure to do interior decorating and to cut the grass and care for flowers and shrubbery and the holding, on the premises, of drinking parties which disturbed the entire neighborhood until long after midnight. Perhaps the latter allegations
were intended to cover the statutory grounds which permit such an action against a tenant who "shall be so disorderly as to destroy the peace and quiet of" other tenants or who "shall willfully destroy, damage or injure" the premises. R.S. 2:32-265. But under Dedo v. Kuser, 103 N.J.L. 223, it is not enough that the tenant's conduct is disturbing; it must be disturbing to other tenants of the landlord; and this qualifying condition is not alleged in the affidavit and was not met in the proofs taken in the District Court. Indeed, it seems that there were no other tenants of the landlord in the neighborhood. Further, we find neither allegation nor proof that there was willful destruction of the premises or indeed any destruction aside from the frail assertion related above. On July 16th, 1942, the return day named in the summons, the trial was adjourned to July 30th, and after the adjournment the arrears in rent were paid. On July 30th, the adjourned day, the tenant did not appear and the court, according to the certification of the judge to us, gave judgment for possession. The clerk's docket shows no judgment for possession as of that or any other day. It does contain this strange entry:
"Aug. 18 1942 The plaintiff appeared ready for trial. The defendant not appearing, and no sufficient reason being assigned why he did not appear, and it further appearing by the return endorsed that the summons was duly served, the Court proceeded to hear and determine the cause in the absence of the defendant. Plaintiff offered affidavit on file.
"The evidence being closed and submitted to the Court, judgment was rendered by the Court and is here entered in favor of the plaintiff and against the defendant for the sum of Dollars debt, and Three & 90/100 dollars cost of suit."
There was no trial on August 18th, and the judgment here recorded obviously is not a judgment for possession. On that same day, August 18th, 1942, the clerk issued a warrant for removal.
Before that and on the original return day of the summons, July 16th, 1942, the following incidents occurred: (a) the ...