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Pennsylvania Railroad Co. v. Albert

Decided: July 6, 1953.

THE PENNSYLVANIA RAILROAD COMPANY, A CORPORATION, PLAINTIFF-RESPONDENT,
v.
L. ALBERT & SON, INC., A CORPORATION, DEFENDANT-APPELLANT



Goldmann, Smalley and Schettino. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Defendant appeals from a judgment of possession entered in the Mercer County District Court in favor of the plaintiff railroad in summary proceedings brought by it. Appeal from such a final judgment is to the Appellate Division under N.J.S. 2 A:18-4 (L. 1948, c. 385, § 12, formerly N.J.S.A. 2:32-10.12). The question raised by the appeal, and the only question that can be raised, is whether the county district court had jurisdiction. Opalach v. Cebulah , 2 N.J. Super. 139 (App. Div. 1949).

The agreed statement in lieu of record (Rule 1:2-22) sets out the pertinent facts. On August 30, 1947 plaintiff, as lessee of the works and property of The United New Jersey Railroad and Canal Company, and its agent for the collection of rents, execution of leases and dispossession of tenants, entered into three written leases with defendant respectively affecting three different premises described therein, which leases for convenience will be referred to as leases A, B and C. Defendant went into possession on September 1, 1947. It is agreed that defendant was a tenant at will under each of the leases.

Under the provisions of leases A and C, the tenancy was subject to termination at any time thereafter on 60 days' written notice by either party to the other. Lease B was similarly terminable on 30 days' written notice. All three leases contained the following provision:

"That any notice given under the terms of this lease shall be deemed sufficient to meet the requirements thereof as legal service , if served by Registered United States mail, such notice to be computed from date of mailing." (Italics ours)

Lease A provided for a yearly rental payable on September 1 of each year in advance, and such rental had been paid in advance for the year September 1, 1950 to August 31, 1951. Leases B and C provided for monthly rentals payable on the first day of each and every month in advance.

Written notice of termination of the respective tenancies was given by plaintiff to defendant by registered mail, return

receipt requested, on March 29, 1951, to take effect on May 31, 1951. Copies of the notices and the signed registry receipts were received in evidence, formal proof being waived. Defendant having failed to vacate the land and premises, plaintiff instituted summary proceedings. Defendant moved to dismiss the complaint on the ground that the county district court was without jurisdiction because the notices did not meet the statutory requirements. In awarding judgment for possession to plaintiff the court held:

"Where, as here, the tenancy is created by a lease entered into between the parties, providing for the method of terminating the tenancy and delivering possession of the demised premises to the landlord, and such method was pursued by the landlord, as was in the case at bar, by notice served upon the defendant in strict compliance with the provisions of the lease, the tenancy is effectively terminated. See Quidort v. Bullitt , 60 N.J.L. 119."

We agree.

At common law a tenancy at will could be terminated at any time by any act of either the landlord or the tenant which was inconsistent with its continuance, and such a tenancy could even be terminated by implication of law, as where either party died. No notice was necessary to effect such termination. 1 Tiffany, Landlord and Tenant (1910), § 13(b)(1), p. 111; 1 American Law of Property (1952), § 3.91, p. 378; 2 Walsh, Commentaries on the Law of Real Property (1947), § 154, p. 174; Standard Realty Co. v. Gates , 99 N.J. Eq. 271, 276 (Ch. 1926). The common-law rule respecting notice to tenants at will has been changed by statute both in this State and elsewhere. The reason for the requirement that notice of the termination of the tenancy be given is the indefiniteness and uncertainty of the duration of such a tenancy and the protection of each of the parties thereto against capriciousness on the part of the other. 32 Am. Jur., Landlord and Tenant , § 993, p. 836.

Defendant contends that the county district court was without jurisdiction because R.S. 2:58-17(a) requires that written notice must be served either personally upon the tenant by ...


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