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Vineland Shopping Center Inc. v. De Marco

Decided: July 13, 1961.

VINELAND SHOPPING CENTER, INC., PLAINTIFF-RESPONDENT,
v.
LOUIS DE MARCO, DEFENDANT-APPELLANT



For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.

Weintraub

This appeal involves a dispossess action. The county district court granted the landlord's motion for summary judgment. The Appellate Division affirmed, 65 N.J. Super. 223 (1961), and we allowed certification, 34 N.J. 324 (1961).

The lease is for a term of five years beginning June 15, 1957, at a monthly rental of $225, with an option in the

tenant to renew for a further term of five years. The complaint alleged a number of violations of the lease, but judgment was entered solely upon a finding that the tenant failed to pay sewerage charges under a covenant reading:

"Tenant agrees that it will pay all charges for electricity, water, gas, telephone, heat and fuel, sewer and other utility services used on the leased premises."

On June 10, 1960, plaintiff served upon defendant a notice "that your tenancy * * * is hereby terminated" for stated reasons, including the failure to pay the sewerage charge. That charge, with interest, was $182.85 and covered three semi-annual installments payable in advance, beginning with June 1, 1959. On the day the notice was served, defendant paid the charge directly to the Landis Sewerage Authority. The suit was started ten days later and hence after payment had been made.

The lease does not spell out the mechanics of payment of the sundry items listed in the covenant quoted above, by which we mean that it does not state whether payments are to be made to the suppliers or to the landlord upon the latter's invoice. The record is silent as to past practices. Indeed we do not know whether the sewerage authority billed the owner or the tenant. We know only that immediately upon service of the mentioned notice, defendant made the payment directly to the Authority. The record is devoid of any suggestion that plaintiff was injured or prejudiced by the delay. There was no prior demand for payment, plaintiff invoking the provision of the lease:

"Provided, however, that if any rents shall be due and unpaid or if default shall be made in any of the covenants, conditions and rules herein contained for a period of 30 days, then it shall be lawful for the said landlord at his option without notice and without any demand for said rent or for the performance of said covenants, conditions and rules or regulations, to declare this lease null and void and the said term ended and to re-enter the said premises and remove all persons therefrom or to proceed by action for the recovery of possession thereof, or otherwise however."

I.

Initially we must consider the scope of appellate review.

The summary dispossess statute originated in 1847 (p. 142). The purpose was to give the landlord a quick remedy for possession. Appellate review was barred, thus giving finality to the trial court's judgment with respect to possession. The tenant was remitted to an action for damages in which the judgment in the possessory action had no binding effect upon the ultimate merits of the case. McGann v. La Brecque Co., Inc., 91 N.J. Eq. 307, 308 (E. & A. 1920); Opalach v. Cebulah, 2 N.J. Super. 139, 141 (App. Div. 1949).

In actual practice it is doubtful the legislative objective was achieved. For one thing, such actions were viewed with much hostility, the courts dismissing for minute failures to meet the statutory prescriptions. Further, the former Court of Chancery exerted its power to relieve upon grounds not cognizable at law, a power which was upheld when relief was sought prior to the entry of judgment in the possessory action. Crest Drug Store, Inc. v. Levine, 142 N.J. Eq. 652 (E. & A. 1948); Red Oaks, Inc. v. Dorez, Inc., 120 N.J. Eq. 282 (E. & A. 1936); Sparks v. Lorentowicz, 106 N.J. Eq. 178 (E. & A. 1930); H. Windholz & Son v. Burke, 98 N.J. Eq. 471 (Ch. 1925); 18 N.J. Practice (Fulop and Kain, District and Municipal Courts, 1954) ยง 1569, p. 140. Finally, it was held that the Legislature could not curb the inherent authority of the former Supreme Court to review the jurisdiction of lower tribunals, and hence the proceedings remained reviewable by certiorari to that extent. Fowler v. Roe, 25 N.J.L. 549 (Sup. Ct. 1856); Stanley v. Horner, 24 N.J.L. 511 (Sup. Ct. 1854). The present statute incorporates this decisional law, providing in N.J.S. 2 A:18-59:

"Proceedings had by virtue of this article shall not be appealable except on the ground of lack of jurisdiction. The landlord, however, shall remain liable in a civil action for unlawful proceedings under this article."

In brief, the quest for a speedy possessory result has spawned procedural quarrels which delay access to the merits and frustrate the litigants who foot the bill. In 1951 the Advisory Committee on Revision of Statutes noted in Suggested Changes to the ...


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