Price, Haneman and Schettino.
Appeal is taken from a judgment of a District Court dismissing a complaint for alleged rents. Basically the facts are not in dispute.
Plaintiff's testimony was as follows: Plaintiff-landlord sued to recover increases of rent covering each month for a period commencing September 1, 1956 to July 1, 1957 at the rate of $11.44 per month, including the original rent for July 1957 in the sum of $57.20; the latter sum was sent to the landlord by the tenant but the landlord refused to deposit the check therefor and still retains the same. Although this suit is to recover $183.04, the actual amount in dispute is $125.84 -- the difference between the full amount of $183.04 and the retained check amount of $57.20.
Plaintiff-corporation rented the apartment to defendant in or about December 1954 on a monthly basis for the maximum rental sum of $57.20 recurring on the first of each month. On July 31, 1956 plaintiff's agent served defendant with a copy of a notice of termination of tenancy effective September 1, 1956 by sliding it under the defendant's apartment door. On August 27, 1956 the agent similarly served defendant with a letter stating in part that plaintiff's acceptance of amounts less than the new rental amount would not be a waiver. Thereafter, defendant continued to pay her rent by checks to the plaintiff's superintendent at the rate of $57.20 for 11 months until June, 1957. On June 25, 1957 plaintiff mailed to defendant a demand for payment of the total amount due and in July 1957 defendant sent to plaintiff the above-mentioned check which the landlord refused to accept as payment and still retains the check.
Defendant testified that she found the first letter notice under her apartment door on July 31, 1956; she also found under her door the second letter notice on August 27, 1956; she continued to pay her usual rent to plaintiff's superintendent each month thereafter; in July 1957 she offered her check for the July rent to the superintendent which was refused, and she thereupon mailed her check to plaintiff with a letter stating in part:
"I have contacted the Rent Bureau at City Hall, Jersey City, N.J.; and have been so informed, according to the New Jersey State Rent Law.
(1) A tenant must be given thirty (30) days notice for a rent increase.
(2) No retroactive monies allowed according to this law.
Please be advised I am in accordance with this law, and therefore my new rental will take effect as of August 1, 1957."
The trial court found for defendant, holding the first notice, referred to by plaintiff as a notice of termination of tenancy, did not constitute a proper notice to quit; and further, that by accepting the rental payments in the original amount from defendant, plaintiff had waived its right to recover retroactively the increases in rent.
The letter by which the plaintiff-landlord sought to terminate defendant's month to ...