On appeal from the Supreme Court.
For the plaintiff-appellee, Lum, Fairlie & Wachenfeld (Vincent P. Biunno, of counsel).
For the defendant-appellant, Oppenheim & Oppenheim (Joseph Steiner, of counsel).
The opinion of the court was delivered by
THOMPSON, J. Plaintiff-appellee was the owner of two adjacent store premises in Newark, New Jersey, which had been separately leased to the defendant-appellant by a former owner.
The leases were assigned to plaintiff and he became the landlord entitled to the rent. The expiration date in both leases was June 30th, 1945. Each lease recited that the premises were to be used and occupied as a store and show room for the purpose of disposing of, selling, vending and displaying automobiles, radios, refrigerators, washing machines, and other electrical appliances and equipment.
The lessee paid his rent to November 30th, 1942, and admittedly vacated the premises on or before that date. On
October 1st, 1943, eleven months after the vacation by the lessee, the landlord claimed the rent due to that date to be $2,530, less $775 received from a new tenant which he credited against the $2,530, and sued for the balance of $1,775. The complaint charged that the lessee "did abandon and vacate the said premises" prior to December 1st, 1942, in violation of the terms and conditions of the leases.
The lessee answered, admitting the leases and admitting his vacation of the premises prior to December 1st, 1942, but denying that he abandoned the same, and denying that he had removed therefrom in violation of the terms and conditions of the leases.
The substantial issue in the case arises out of the contention of the defendant lessee which he sets forth as a first separate defense in his answer. The second separate defense, that he is not indebted to the plaintiff for any rent, and the other matters of denial in the answer are in effect corollary to the matters set forth in the first separate defense, and dependent upon the validity of that defense. This is likewise true of defendant's counter-claim for the return of a deposit of $300 originally made as security for the performance of the terms of the leases.
The substance of the first separate defense mentioned is that the leases stipulated that the premises were to be used for the purpose of disposing of, selling, vending, and displaying automobiles, radios, refrigerators, washing machines and other electrical appliances and equipment; that the defendant was allegedly evicted from the premises by the United States government by virtue of the fact that it, as a part of its war policy, and pursuant to acts of Congress, had promulgated orders prohibiting the production and sale of the articles set forth in the leases; that the defendant lessee surrendered the premises to the landlord and elected to terminate the leases because of the action of the government; that as a result of the government action, production and sale of the articles mentioned in the leases, for which ...