Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
[41 NJSuper Page 439] The defendant landlord, Linwood Park, Inc., appeals from a judgment for $103.50 and interest in favor of the plaintiff tenant, Lloyd Heyman, entered in the Bergen County District Court after trial without a jury. The plaintiff filed no brief on this appeal; nor did he appear on oral argument.
The plaintiff and the defendant entered into a written lease for an apartment for a term beginning December 1, 1953 and ending November 30, 1955 at a monthly rental of $69, payable in advance on the first day of each month. In accordance with the terms of the lease, the tenant deposited with the landlord the sum of $69 as security for his full and faithful performance of the lease provisions. The deposit was to be returned to the tenant at the expiration of the term, provided the tenant had carried out all the provisions of the lease, one of which was to surrender the demised premises "in as good order and condition as they were at the beginning of the term, reasonable wear and damage by the elements excepted." The lease further provided that in the event of a default or should the premises be vacated, the landlord had the right to reenter and at its option to relet as agent of the tenant.
The tenant entered into possession and paid the stipulated rent each month including that due for October 1955.
On October 7 or 8, 1955 the plaintiff vacated the premises, moving all his effects but retaining the key to the apartment. When questioned by Mr. Cittadino, the rental agent of the defendant, as to what he was doing, he said that he was moving. Mr. Cittadino testified that on October 8 he inspected the apartment and noticed three different colors of paint on the walls, a two-by-four board across the ceiling, that the wall plaster was broken and there were holes in the floor. The plaintiff admitted that he had had a room separator in the apartment, which was fastened to the wall and to the floor, and that when he removed it there were three or four screw holes in the wall and two in the floor, and that the wall plaster was damaged.
Mr. Sarner, the defendant's maintenance manager, testified that the apartment was painted on October 12 and 13, and was rerented on October 15, 1955 at the same monthly rental of $69. Subsequently, the plaintiff demanded refund to him of the half-month's rent from October 15 to 31, 1955, and the return of the security deposit of $69. The landlord
refused the plaintiff's demand, and the present proceeding was instituted.
The trial court found that the landlord's act of reletting the premises was performed as agent of the tenant; that the landlord proved no expenses incurred in reletting; that the rent collected from the new tenant was for the benefit of the plaintiff and to be applied to rent due; and that, since the rent for October had already been paid, the half-month's rent should be returned to him. Further, that the premises "at the time plaintiff removed his furniture and the defendant took possession were in as good condition as they were when originally rented to the plaintiff, reasonable wear excepted." Thus, judgment was entered for the amount of the security deposit, plus one half month's rent for October.
The appellant argues here: (1) that when a tenant pays rent and vacates the premises during the term, he is not entitled to the return of a pro rata share, regardless of whether the landlord has relet the premises, unless the landlord relet the premises as the agent of the vacating tenant, and that the reletting here was on his own account; and (2) that when a landlord denies that a tenant is entitled to the return of a security deposit because of a breach of condition of the lease, he may assert this defense by filing an answer or by appearance, without filing a counterclaim.
It is the settled law of this State that the landlord is under no duty to reenter and relet where, as here, the lease contains a covenant that the tenant is not to assign or sublet without the written consent of the landlord, and has the usual option to reenter and relet in case of vacancy or abandonment. Muller v. Beck , 94 N.J.L. 311 (Sup. Ct. 1920); Heckel v. Griese , 12 N.J. Misc. 211 (Sup. Ct. 1934); cf. Carey v. Hejke , 119 N.J.L. 594 (Sup. Ct. 1938). Here, the landlord chose to reenter and to exercise his option to relet pursuant to the lease provision.
The appellant urges that the exercise of the option to relet was not as plaintiff's agent, but on his own account, and, hence, that he should be free to retain the proceeds thereof. That a ...