Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
[49 NJSuper Page 244] The plaintiff is the assignee of a written lease of certain premises designated as 61-69 Main Street, and also "1100 feet" of the rear portion of a one-story building at 55 Main Street, both in East Orange. (The lease refers to "1100 feet" but it is apparent that the meaning is "1100 square feet"). The complaint, in two counts, seeks (1) a declaratory judgment that plaintiff is a tenant under that lease and not a month-to-month tenant as claimed by defendants, and (2) possession of the portion of the demised premises at 55 Main Street claimed to have been unlawfully usurped and controlled by the defendants, as well as damages for defendants' failure to deliver possession thereof to the plaintiff. The trial judge held for the plaintiff on the first count as a matter of law and submitted the second count to the jury on the issue of whether or not the plaintiff or its assignors had any rights under the lease
to possession of the 1100 square feet in the rear of 55 Main Street. The jury returned a verdict of no cause of action on the second count. We are concerned on this appeal only with that count.
The plaintiff's assignors, Louis Morachnick and John Kistner, individually and trading as Sterling Auto Sales, were the lessees under the lease entered into on April 1, 1952. The assignment by which the plaintiff is now in possession of 61-69 Main Street was dated March 29, 1954. The defendants have accepted the rent specified in the lease from the plaintiff for each month since the date of the assignment until at least the date of the trial. However, because the defendants refused to recognize the plaintiff as holding by assignment under the lease, but only as a monthly tenant, this suit was instituted.
The lease of April 1, 1952 covered 61-69 Main Street and 55 Main Street, to be used for the business of dealing in used cars. Mr. Morachnick, one of the original lessees under a prior lease in 1947 covering the same premises and an assignor under the 1952 lease, testified, over the objection of plaintiff's counsel, that although the 55 Main Street property was demised by the lease as follows:
"Also eleven hundred feet (1100') of the rear portion of a 1-story brick and cement block building in the rear of and near or adjacent to a gasoline station located on a tract commonly known as 55 Main Street, East Orange, New Jersey, with entrance through Sterling Street in East Orange, Essex County, New Jersey."
it was not intended that it actually be included as part of the leased premises, but was included in the 1947 lease in order that the lessee might comply with N.J.S.A. 39:10-19 requiring a used car business, as a prerequisite to obtaining a license, to have at least 1000 square feet of enclosed floor space. (The statutory provision has since been declared unconstitutional in New Jersey Used Car Trade Ass'n. v. Magee , 1 N.J. Super. 371 (Ch. Div. 1948)).
There was no objection to other similar testimony by defendant L. E. Smith, who was asked upon cross-examination
why the provision relating to 55 Main Street was not stricken in the 1952 lease, since the law requiring it at the time of the 1947 lease was no longer in effect, and particularly in view of the fact that Smith had previously stated that Marachnick had told Mr. Loria, president of the plaintiff corporation, "that the lease * * * consisted only of 61-69 Main Street, * * *." His answer was "Because I didn't think it was necessary. We talked to Mr. Loria and we explained it to him and Mr. Loria agreed to buy only the business consisting of 61-69 Main Street. That was the agreement between Mr. Loria and myself and Mr. Morachnick."
Smith further testified that the premises at 55 Main Street had been continuously occupied by tenants other than the lessees of 61-69 Main Street from 1947 to the present time. His testimony in this respect was corroborated at least in part by that of Mrs. Grant who was the lessee of 55 Main Street in the years 1947 and 1948 and who indicated that at that time she had no interest in 61-69 Main Street.
There was conflicting testimony on the question of efforts made by the plaintiff to secure possession of the disputed 1100-square-foot area. However, the first written evidence concerning plaintiff's demand for possession of the area is a letter on the stationery of Loria's Garage, Inc., dated April 15, 1955, which was slightly more than a year after the date of the assignment of the lease and also after the yearly renewal in writing on April 1, 1955 pursuant to the lease. There were also introduced in evidence rent checks used in payment by Loria's Garage which had incorporated thereon the following notation: "Rent of 61-69 Main Street."
The issue on this set of facts concerning the second count was submitted to the jury. The trial judge, in explaining the law, stated in part the following with regard ...