Kalteissen, J.c.c. (temporarily assigned).
[33 NJSuper Page 286] The complaint filed by the plaintiffs against the defendant in this case contains two counts. Count one alleges that certain premises owned by the plaintiffs were let on a month-to-month basis to the defendant pursuant to an oral lease and that the defendant, during the term of the lease, damaged the leased building in various ways. The plaintiffs demand
$5,000 to reimburse them for this alleged damage by the defendant.
Count two of the complaint reiterates the fact of the oral month-to-month tenancy stated above and charges the defendant with having committed waste upon the premises, presumably in violation of N.J.S. 2 A:65-2. For the commission of this waste the plaintiffs demand treble damages in the aggregate sum of $15,000 and rely on N.J.S. 2 A:65-3 for the demand of such treble damages.
The defendant has moved to strike Count Two and sets forth two grounds for his motion:
"(a) a month to month tenant does not come within the intended scope of the statute cited in paragraph three of said count, and
(b) the alleged claim set forth therein is barred by the applicable statute of limitations, namely N.J.S. 2 A:14-10."
Oral arguments were heard by me on November 12, 1954, and at the conclusion thereof I informed counsel that I would take the issues under advisement pending a study of their memoranda.
The first issue with which I will deal pertains to the defendant's contention, as stated in his memoranda, that a month to month tenant does not come within the scope of N.J.S. 2 A:65-3. In this particular connection it should be noted that at the time this cause of action arose Title 2 of our statutes had not yet been revised into its present form, 2 A. Accordingly the parties' substantive rights in this case must depend upon R.S. 2:79-2 and 2:79-3, predecessors of N.J.S. 2 A:65-2 and 2 A:65-3.
R.S. 2:79-2 provided that "No tenant for life or years, or for any other term , shall, during the term, make or suffer any waste, sale or destruction * * *." (Italics mine.) R.S. 2:79-3 states that "Any person may have a writ of waste out of chancery against any person holding by dower, curtesy, or otherwise, for life, for a term of years, or other term * * *; and whoever shall be convicted of waste shall lose the thing or place wasted, and shall be liable in thrice the damages assessed against him by a jury." (Italics mine.)
These two statutes have their immediate origin in Cumulative Supplement, p. 5790, sections 2 and 3, respectively.
The defendant takes the position that R.S. 2:79-3 does not permit the recovery of treble damages from a month-to-month tenant and cites Smith v. Salvation Army , 104 N.J.L. 102, 140 A. 298 (E. & A. 1928), as authority for that contention. I take the view that the Smith case does not stand for that precise proposition. Further, it is my opinion that the decision has no present determinative value to the particular issue under discussion and I shall state the reasons for this conclusion later in this opinion. ...