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Vineland Shopping Center Inc. v. Demarco

Decided: January 24, 1961.

VINELAND SHOPPING CENTER, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LOUIS DEMARCO, DEFENDANT-APPELLANT



Conford, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

Defendant appeals from a dispossess judgment granted by the Cumberland County District Court. Such judgments are not appealable "except on the ground of lack of jurisdiction." N.J.S. 2 A:18-59; Davidson v. Burstein , 10 N.J. Super. 91 (App. Div. 1950). Therefore, although defendant has improperly briefed matters going to the merits, we shall limit our review to jurisdictional questions.

The record fairly discloses the following facts. The defendant was a lessee of store premises at 26 W. Landis

Avenue, Vineland, N.J., under a written lease dated March 25, 1957, providing for a five-year term commencing June 15, 1957, with a monthly rent of $225 payable on the 15th day of each month. Thereafter, the lessors, Robert Houck and Doris Houck, sold the premises to Seaboard Developers, Inc., which in turn transferred title and assigned the lease to plaintiff on or about May 17, 1960.

On June 10, 1960 the defendant was served with a written notice, addressed to him, terminating his tenancy in the subject premises, and demanding that he remove from the premises and deliver up possession to the landlord within three days from the service of this notice. The notice was signed: "By Sidney L. Brody, Sec., Vineland Shopping Center, Inc." It specified six alleged violations of the terms of the lease, the first of which charged that the defendant did "fail to pay sewer charges as agreed in paragraph 3 of said lease." The lease gives the landlord the right to terminate it and retake possession upon default for 30 days in any covenant or condition to be performed by the tenant.

The defendant did not vacate as demanded and a dispossess suit was filed on June 20, 1960. The defendant filed a formal answer with three separate defenses, and included a counterclaim for damages, and demand for jury trial. On plaintiff's motion the third separate defense and counterclaim were ordered stricken. There is no appeal from that order. Also, on July 14, 1960 plaintiff moved for summary judgment on two of the six alleged violations, namely (a) failure to pay sewerage charges; and (b) failure to pay increased taxes as agreed in paragraph 11 of the lease. The trial court found no violation of paragraph 11 as to taxes, but found that sewerage charges in the amount of $182.85 were due at the time the notice to vacate was served, so that there was a violation of a covenant of the lease entitling plaintiff to a judgment for possession. (The default was, in fact, for periods of time up to one year.) An order for summary judgment, made on July 21, 1960, was filed on August 2, 1960; and on August 8, 1960 the

judgment was stayed by a further county district court order pending this appeal. Thus, the defendant is still in possession.

We are not confronted with any contention that the Cumberland County District Court lacked jurisdiction to entertain a landlord-tenant dispossess action concerning these premises within its county. N.J.S. 2 A:18-53 establishes that broad jurisdiction. Subdivision (c) (4) thereof permits removal of a tenant.

"Where such person * * * (4) shall commit any breach or violation of any of the covenants or agreements in the nature thereof contained in the lease for the premises where a right of re-entry is reserved in the lease for a violation of such covenants or agreements, and shall hold over and continue in possession of the demised premises or any part thereof, after the landlord or his agent for that purpose has caused a written notice of the termination of said tenancy to be served upon said tenant, and a demand that said tenant remove from said premises within 3 days from the service of such notice. The notice shall specify the cause of the termination of the tenancy, and shall be served either personally upon the tenant or such person in possession by giving him a copy thereof, or by leaving a copy thereof at his usual place of abode with some member of his family above the age of 14 years."

I.

Defendant first contends that the notice terminating his tenancy and demanding his removal was legally insufficient, in that it was "signed, not by the plaintiff but by one Sidney L. Brody." The notice was actually signed, as noted above: "By Sidney L. Brody, Sec. Vineland Shopping Center, Inc." We deem that signing to be sufficiently indicative of a notice from Vineland Shopping Center, Inc. We do not have here the technical question involved in Kean v. Davis , 21 N.J.L. 683 (E. & A. 1847), urged upon us by defendant, which involved the admissibility of parol evidence to clarify a doubt or ambiguity as to the signatory of a negotiable instrument. A requirement of "written notice" is generally held to be satisfied by a written, but unsigned notice, provided the circumstances are such that the receiver

can have no substantial doubt as to the source and purpose of the writing. 51 A.L.R. 2 d 1421; Marjer v. Layfmen , 140 N.J. Eq. 68 (Ch. 1947). N.J.S. 2 A:18:53 specifies a "written notice," but does not specify that it must be "signed." Compare the requirements for a writing and signing under the Negotiable Instruments Law, R.S. 7:2-1, and under the statute of frauds R.S. 25:1-1 et seq. There is no question that, from the face of this notice, the tenant was adequately informed by its content and signature that it purported to be, and was in fact, a notice of the termination of his tenancy on behalf of the landlord. The signing by Brody as ...


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