Drewen, J.c.c. (temporarily assigned).
Complaint is filed in lieu of mandamus , to compel the execution by defendant of a warrant for possession, issued out of the Hudson County District Court and affecting premises owned by plaintiff. It is by way of addition only that the complaint describes defendant as a constable of Hudson County. It is not alleged directly that he held such an office, nor that he was under any obligation to discharge the duties thereof. Defendant moves for summary judgment and a dismissal of the complaint pursuant to Rule 3:56-3.
From the complaint it appears that on October 28, 1952, after hearing in the Hudson County District Court, Part IV,
judgment for possession was granted plaintiff against one Howe Heatly, described as plaintiff's tenant. The premises are not identified, and the grounds upon which the judgment for possession was awarded are not set forth. From the complaint it further appears that on February 24, 1953, pursuant to notice, the date for issuance of the warrant was advanced to March 1, 1953. The grounds set forth in the notice to advance are alleged in the complaint as "your habitual failure to pay your rent on time; and that as of this date (February 17) you are two months in arrears." The grounds upon which the order to advance was actually based are likewise not shown.
It is next alleged that the tenant not having vacated on March 1, 1953, the warrant was issued on the following day, with the further averment that on three occasions prior to the period of the two months arrearage already mentioned, and between January and December 1952, plaintiff had been required "to go to the expense of dispossess proceedings for non-payment of rent four times." All of the recited allegations are brought to focus in the complaint's final paragraph which reads:
"That said defendant, John Bertone, Constable of Hudson County without being served with any restraining order and contrary to due process of law and contrary to rules of civil practice pertaining to the District Courts of this state, refuses and neglects to execute the warrant of eviction as he is commanded so to do by said warrant."
At the outset it is pertinent to notice that the complaint itself is devoid of any allegation that defendant, as constable of Hudson County, was at the time or times in question attached to the court out of which the warrant issued; that it is likewise devoid of any allegation that the warrant was ever issued to defendant, as constable or otherwise, for execution by him; and devoid also of any charge that defendant knew or had reason to know at the time or times in question of the existence of such a warrant. There is, moreover, no allegation of the tenor of the warrant's mandate.
The affidavits are not in material conflict, and from them it appears that the facts hereinafter dealt with constitute the
basis on which mandamus is sought. On March 2, 1953 the warrant issued. On March 3, 1953, defendant was informed, correctly as it turned out, that payment of the aforementioned two months' arrearage in rent had been accepted by the landlord on February 24, that is, on the return day of the notice to advance the warrant's issuance. Because of the omissions in plaintiff's allegations as already noted, there is nothing to make it appear but that the payment of such arrearage had removed all ground for the eviction. At any rate, there is no denial of the statement in defendant's affidavit that the landlord's receipt, exhibited by the tenant to defendant on March 5, was for the payment of a sum as "representing two months' rent, dated February 24, 1953, which rent constitutes the arrearage that was the subject of the proceedings that accelerated the removal warrant."
Plaintiff's attorney says in his own affidavit that on March 7 he communicated with defendant by telephone, and was then advised by him that upon his informing the district court judge of the tenant's payment as shown by the aforementioned receipt, the judge had ordered that he proceed no further with the warrant's execution. Three days after this telephone conversation the attorney caused the moving papers in the instant suit to be filed in the office of the clerk at Trenton, that is on March 10, the very day, as it happened, on which defendant was informed by the tenant that he was then vacating the premises. On March 11 defendant found the premises vacated. Six days later, that is on March 17, summons in the present suit was served.
What I judge to be a fact of salient import in the general situation is defendant's undenied recourse to the district court judge for advice in the face of the landlord's acceptance of the two months' rent arrearage. And it is significant that counsel, upon learning of the judge's direction to defendant, did not take similar recourse himself so as to acquaint the judge with whatever counsel deemed his client's right to be, notwithstanding the payment. He argues "it would be setting a ...