On appeal from the Essex County District Court.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- Justice Heher. The opinion of the court was delivered by Case, J.
[3 NJ Page 131] The matter is here on our own certification. It is a landlord and tenant action wherein the landlord refused to accept proffered rental payments upon the ground that they were so conditioned as to make for a substitution of tenants without his consent. The tenant, according to his contention,
was Rose Luciano. Those who made effort to pay, but not under Rose Luciano's tenancy, were Rose's sister, Elsie McMullen, and her father, Peter Luciano. The trial court, after a faltering course, finally concluded that Elsie was a person in possession under the statute (R.S. 2:32-269) and therefore was authorized to make the payment. Thereupon the rent was paid, an earlier judgment for possession was vacated and, by court direction, the cause was discontinued. The landlord appeals.
Maltese, the landlord, instituted the action by filing an affidavit (R.S. 2:58-18, 2:32-266) which alleged that Rose Luciano was in possession of the premises under a rental agreement made between them October 30, 1946, running from month to month with the rental ($45.00) payable monthly in advance; that on August 31, 1947, Maltese and Rose Luciano entered into a supplemental agreement whereby the rental was increased to $51.00 per month; that Rose Luciano regularly paid the rental to and including the month of March, 1949, but defaulted in the April, 1949, payment and was holding over and continuing in possession. Rose Luciano was served personally with affidavit and summons on April 27, 1949. She did not appear, was not represented and did not defend. Her sister, Elsie, was present in court on the return day and informally stated that she had the rent and was willing to pay it but that the landlord had refused acceptance upon the ground that she had demanded a receipt in a name other than that of the tenant. The court considered that the matter should go to formal trial and proceeded thereto.
The landlord testified that at the time he purchased the property in 1945 Mrs. Centanni, a sister, was the tenant and that she and her child lived there and also Peter Luciano, Mrs. Luciano and Rose; that in September of 1946 the Centannis moved out and Elsie came in; that the landlord then made the aforesaid rental agreement with Rose and had not made a rental agreement with any other person; that in March, 1949, another sister, Mrs. Divona, and her daughter moved in; and that thereafter Rose married and left; that
Elsie McMullen tendered the rent on April 1, 1949, and demanded a receipt in her own name; that the landlord refused to issue such a receipt; that on April 5, 1949, he received a registered letter which contained a money order in the amount of the rent sent by Peter Luciano as remitter, and that he refused to accept the remittance.
Elsie McMullen was permitted to take the stand. She admitted that generally what the landlord had testified to was true but declared that her father was the tenant, that the rental had been paid by the daughters by way of board to the father, that there was no agreement with Rose for the underletting or subletting of the property or for an assignment of the tenancy, and that Rose was then in Florida on her honeymoon.
The judge, having reserved decision, later sent letters by registered mail to the attorney for the plaintiff and to Mrs. Elsie McMullen stating his conclusion that the tender of the rent had not been unrestricted but that a receipt had been demanded in a certain name -- that of the father; that, however, under the statute the rent might be paid by a person in possession and that as Mrs. McMullen did, while on the witness stand, offer to pay the rent, opportunity would be given for her to pay the clerk $51 plus $3.26 costs, until the close of business on Thursday, May 12th, otherwise there would be a judgment for possession on behalf of the landlord. The rent was not paid within the time stated and judgment for possession was rendered. Warrant for removal was issued on May 19, 1949.
On May 24, 1949, Peter Luciano and Elsie McMullen came in with a petition on oath asking that the judgment for possession be vacated and that Peter Luciano as tenant or that Elsie McMullen as a person in possession in his behalf be permitted to pay the rent. In that petition it was averred that Peter Luciano was the tenant by virtue of a rental agreement made in June, 1942, with an earlier owner of the property; that the rental by whomever paid to the landlord had been paid on behalf of Peter as tenant; that when Elsie McMullen made tender of the April rent it was on behalf of
Peter as the tenant; that Peter Luciano, himself, as tenant, made tender of the April rent by registered mail and later, likewise, of the May rent; that the tender by Elsie in court was on behalf of Peter, as tenant; that the registered mail notice from the court failed of timely delivery because no one was at the house when delivery was attempted and that although notice of the letter was left and was received Elsie was unable to leave her work to ...