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Publix Asbury Corp. v. City of Asbury Park

Decided: August 21, 1951.

PUBLIX ASBURY CORP., INC., A CORPORATION, PLAINTIFF,
v.
CITY OF ASBURY PARK, N.J., ET ALS., DEFENDANTS



Leonard, J.c.c.

Leonard

The plaintiff and defendants have stipulated that the complaint and supplemental complaint and the second count of the counterclaim of the defendant, City of Asbury Park, N.J., shall be dismissed without prejudice and without costs, and that this action shall proceed only as to the first count of said defendant's counterclaim.

By lease dated August 21, 1942, the defendant, City of Asbury Park, N.J., leased the Paramount Theatre, on the boardwalk, in said city, to one Walter Reade, an assignee of the plaintiff, for a term of 20 years. Said lease provided for the payment of an annual rent based upon certain percentages of all gross receipts, with a minimum guarantee of $12,500 per year "for the duration of the war," and thereafter $20,000 per year for the balance of the leasehold.

The pertinent portion of said lease reads as follows:

"For the term of twenty years to commence on the twenty-first day of August, 1942, at an annual rental of fifteen percent (15%) of all gross receipts up to $200,000.00 and seventeen and one-half percent (17 1/2%) of all gross receipts if same amounts to $200,000.00 and over with a minimum guarantee of $12,500.00 per year for the duration of the war (italics mine) and thereafter $20,000.00 for the balance of the leasehold, payable monthly."

It has been stipulated that the plaintiff, based upon the percentages contained in said lease, paid as rent from August, 1942, to the year of 1949, a sum in excess of $20,000 annually, but for the year of 1950 paid the sum of only $15,405.87.

The defendant, City of Asbury Park, N.J., in this counterclaim seeks to recover the difference between said $20,000 and the sum so paid for the year 1950, to wit, the sum of $4,594.13.

The plaintiff denies that it is so indebted, and contends that the words "for the duration of the war," should be construed to mean until the war has been formally terminated by the making of a treaty or treaties of peace between the United States and its enemies, Germany, Italy, Japan, and their allies.

To the contrary, the defendant denies the construction contended by the plaintiff and bases its claim upon the contention that the words "for the duration of the war," as used in said lease, means the "shooting war," and that said "shooting war" terminated on or about September 2, 1945, when the actual fighting and hostilities ceased between the United States and its enemies as above referred to.

In support of its contention the plaintiff first relies upon R.S. 1:1-2 A , which became effective May 2, 1942, some three months before the execution of said lease.

Said statute provides as follows:

"Unless it be otherwise expressly provided or there is something in the subject or context repugnant to such construction, the following words, phrases and clauses, namely: 'present war,' 'present war emergency,' 'the existing state of war,' 'present defense emergency,' when used or named within this State in any manner whatsoever with relation to a period of time shall mean so long as the United States of America continues in the present wars with the governments of Japan, Germany and Italy, or any of them, and until the making of a treaty or treaties of peace concluding all of said wars."

Plaintiff argues that said statute is applicable and controls the construction of the words in said lease.

The defendant argues that said statute has no application to this lease; that said statute was passed for the purpose of being an aid in the interpretation of statutes and legislation of this State. In support of this the defendant argues that said statute is annotated under section 1:1-2 in the Revised Statutes, which section of said Revised Statutes deals with definitions of words and phrases when used in any statute and in the Revised Statutes. Defendant further argues that the statement annexed to the original legislative bill (Assembly

Bill No. 143, year of 1942), which upon its passage became the statute involved herein, provided: "The passage of this Bill will save time and difficulty in drafting legislation."

Thus, the primary question to be determined is: Does said statute, to wit, R.S. 1:1-2 A , control in the instant case?

The fundamental rule of judicial construction of statutes is to ascertain and give effect to the intention of the Legislature as expressed in the statute. Cooper v. State Board , 114 N.J.L. 10, 15 (Sup. Ct. 1934), affirmed 115 N.J.L. 115 (E. & A. 1935); Blackman v. Iles , 4 N.J. 82, 89 (1950).

A reading of the instant statute discloses that it states in part: "The following words, phrases and clauses, namely: 'present war,' 'present war emergency,' 'the existing state of war,' 'present defense emergency,' ...


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