Brown, R.c., J.c.c. (temporarily assigned).
This is a suit for possession of land and a building. It grows out of a lease of certain lands and premises located in the Township of Pennsauken, County of Camden and State of New Jersey, owned by the plaintiff and leased to the defendant, Greater Valley Terminal Corporation, on September 1, 1954, for a term of 99 years.
The matter comes before the court on cross motions for summary judgment.
The first motion is on behalf of the defendants, and the second on behalf of the plaintiff. Each seeks a judgment on the ground that there is no genuine issue as to any material fact and therefore each is entitled to a judgment as a matter of law.
The ninth paragraph of the lease is the one about which the present dispute centers, and it provides in part as follows:
"Lessee covenants and agrees that he will do none of the following things without the consent in writing of Lessor first had and obtained:
(b) Assign, mortgage or pledge this lease or under-let or sub-lease the demised premises, or any part thereof, or permit any other person, firm or corporation to occupy the demised premises, or any part thereof; * * *"
Paragraphs 14 and 15 of the lease give the plaintiff the right of re-entry in the event of a breach of the provisions of paragraph 9 above stated.
Plaintiff contends that some time after the execution of the lease, the exact date he does not know, the defendant, Greater Valley Terminal Corporation, assigned the lease to the defendant, Paragon Oil Company, Inc., in violation of the above terms. In the alternative, plaintiff alleges that the said defendant either sublet or permitted the defendant, Paragon Oil Company, Inc., to occupy the demised premises in violation of said terms.
Somewhat subsequent to the arguments on the motions, plaintiff was given leave to amend his complaint by adding the contention that the Paragon Oil Company, Inc. assigned the lease to Texaco, Inc., a Delaware corporation. This statement has not been substantiated by affidavit or other proof.
Plaintiff, by his affidavit filed herein, says that at no time has he ever authorized, either orally or in writing, the occupancy of said premises by anyone other than the defendant, Greater Valley Terminal Corporation. By a supplemental affidavit he says that the lease in question was executed in the Commonwealth of Pennsylvania and that all rental payments have been made there. The lease provides that all rents shall be paid at the office of the lessor in Philadelphia, Pennsylvania, or at such other place as the lessor may from time to time designate by notice in writing.
The defendants deny that there has been any breach of the lease, and specifically that there has been any assignment or sub-letting thereof, or any occupancy by ...