On appeal from the Second District Court of Jersey City.
For the plaintiff-appellant, Wallace P. Berkowitz and Abraham Sepenuk.
For the defendant-respondent, Meehan Brothers (Thomas F. Meehan).
Before Justices Case and Perskie.
The opinion of the court was delivered by
CASE, J. Plaintiff as owner sued to recover the sum of $110 claimed to be due for rent for the month of December, 1943. The case was tried without a jury. Judgment went for the defendant.
Appellant's brief states:
"The only question presented in this case is whether a month to month tenant who remains in possession of the premises eight days in a new month is liable for the entire month's rent."
The parties were unable to agree upon a state of case for appeal. The District Court judge, on request from the parties, settled the facts as follows:
"From the evidence, it appears that the plaintiff purchased the above mentioned premises, a one family frame dwelling house, in or about the month of August, 1943, at which time, the defendant was a tenant in said premises at a monthly
rental of One Hundred and ten ($110) Dollars. It further appears that the plaintiff purchased the said premises with the idea of occupying same himself and that he notified the defendant of his intentions and requested her to vacate. It seems that the defendant was willing to vacate but was not in a position to do so until December 8th, 1943, at which time she moved from the premises and delivered the key thereto to the plaintiff and mailed him a check for Twenty-five Dollars and sixty-seven cents ($25.67) (covering the period from the 1st to the 8th of December, 1943), which he received the following day, upon which check were written the words, 'final payment in full for rent.' Said check was never cashed and was introduced in evidence and marked Exhibit P-1. The testimony further showed that immediately thereafter the plaintiff went into possession of the leased premises, purchased his winter supply of coal which was delivered to same, and proceeded to repair and paint the interior of the premises."
Counsel in their briefs state their respective versions of the facts. However, we are governed by the settled state of case, and we find ...