On motion for summary judgment.
This is a motion for a summary judgment in an action to recover possession of lands. The case is unusual in that it is alleged that the defendant, Dries, is both owner and lessee of the premises on which is erected a gasoline filling station situate in Pemberton Township, Burlington County. On February 6, 1946 Dries entered into a written lease agreement with George S. Seitz and Herbert F. Amison for a term expiring March 1, 1951. Said lease, among other things, provided that:
"And it is further agreed by and between the parties hereto that the said parties of the second part shall have the right and option to renew said lease at the expiration of this lease for a further period of five years upon the same terms and conditions, save only that the annual rent shall be increased for this period from the aforesaid sum of Eighteen Hundred Dollars ($1800.00) per year to Twenty-one Hundred Dollars ($2100.00) per year, payable in equal monthly installments of One Hundred Seventy-five Dollars ($175.00) in advance; provided, however, that in order to exercise said option to renew said lease, the said parties of the second part must give written notice of their intention to so do, to the said party of the first part sixty days prior to the expiration of the original lease;"
On this same date February 6, 1946, George S. Seitz and Herbert F. Amison assigned the aforesaid lease to Trenton Oil Company, Inc. and Richard A. Dries, owner-lessor to the original lease, consented in writing thereto.
On February 7, 1951 Trenton Oil Company, Inc. entered into a written lease with Horace Smith, Sr. and Horace Smith, Jr. for a term of five years commencing March 1, 1951. This lease covered the premises in question and provided that "if Lessor is not the owner of the premises herein demised then the within lease and the estate hereby created are subject to all of the terms, provisions and conditions of the lease or other arrangement under which the Lessor has been occupying said premises * * *" and also contains the provision:
"Lessor is hereby given the right, at its option, to cancel this lease at any time during the original term hereof, or any renewal or extension thereof, upon thirty (30) days' prior written notice of Lessee, provided, however, that upon any such cancellation of this lease, Lessor shall remit to the Lessee as a consideration for such cancellation, a sum equivalent to one (1) month's rent based on the average monthly rent previously paid by the Lessee to Lessor."
On March 3, 1951, Richard A. Dries, as owner instituted an action in ejectment against Trenton Oil Company and others. At the end of the defendant's case the court granted the plaintiff's motion for a directed verdict against the defendant on the ground that defendant had failed to properly exercise its option to renew under the terms of the lease. An appeal was taken (Dries v. Trenton Oil Co., Inc. , 17 N.J. Super. 591 (App. Div. 1952)). Judge Eastwood delivered the opinion of the court and held:
"It is clear that the subletting by the original tenants to the oil company for the full term of the primary lease constituted an assignment. The oil company so contends and the plaintiff apparently concedes such a legal result as evidenced by the plaintiff's statement in his brief that 'a lease of which the defendant was the assignee clearly set forth the method of exercising the option to renew. * * *'"
The judgment was reversed and the cause remanded for a trial de novo for the reason that the evidence presented an issue of fact as to whether plaintiff had waived the necessity for the giving of notice of intention to renew.
As a result of the remand for a new trial, conferences were had by the parties litigant and their attorneys and at a conference held on December 22, 1952, at which were present Mr. Anthony Conte, president of Trenton Oil Co., Inc. and Mr. George Warren, his counsel, Mr. Richard A. Dries and Mr. ...