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Packard-Bamberger & Co. v. Maloof

Decided: April 13, 1964.

PACKARD-BAMBERGER & CO., INC., PLAINTIFF,
v.
JACK MALOOF, DEFENDANT. JACK MALOOF, THIRD-PARTY PLAINTIFF, V. JAMES KHOURY, THIRD-PARTY DEFENDANT



Schneider, J.c.c. (temporarily assigned).

Schneider

A motion for summary judgment has been made in the case of Packard-Bamberger & Co., Inc. v. Jack Maloof. The decision in the case of Maloof v. Khoury , based upon a third-party complaint depends somewhat on the decision in the Packard-Bamberger case, and can be disposed of as soon as judgment is entered in the latter case.

The plaintiff was an owner of premises at Main Street and Hackensack Avenue in the City of Hackensack, and on April 9, 1958 leased said premises by written instrument to one George M. Pappas. This lease was for a period of ten years commencing May 1, 1958 and ending April 30, 1968, with a rental of $400 per month. The least was the usual Gilsey form, and the fifth clause provided that the tenant shall not assign this agreement or underlet the premises. Tenant also agreed to pay the real estate taxes under clause 26 in the lease.

On October 26, 1961 George M. Pappas assigned said lease to the defendant Jack Maloof by a written assignment. At the bottom of the assignment there were written the words

"above assignment hereby accepted," and it was signed by Jack Maloof. On September 12, 1961 James Pappas, a lawyer, wrote to Packard-Bamberger, Inc., stating that he represented George Pappas and that his client desired to assign his lease to Jack Maloof. By letter dated October 2, 1961 Packard-Bamberger wrote a letter to James Pappas stating that it was in complete agreement in having the lease assigned to Mr. Maloof personally. On October 26 James Pappas sent a signed copy of the assignment of the lease to Packard-Bamberger.

Maloof entered into possession of the premises and continued to occupy the premises for a year and paid rent to Packard-Bamberger which was accepted by it.

In October 1962, without any notice to the landlord and without the landlord's consent, Maloof assigned the lease to one James Khoury. Khoury tendered the rent to Packard-Bamberger, but it refused to accept payment from him and made clear its intention to hold Maloof responsible for the rent. Khoury continued to send the rent and Packard-Bamberger continued to refuse it. Packard-Bamberger instituted suit against Maloof for possession of the premises and for the payment of rent. He filed a third-party complaint against Khoury for the rent due. The court ordered the tenant evicted from the premises and there became due the sum of $1,200 for the period of time that the premises were occupied by Maloof and $4,800 for the period of time that the premises were occupied by Khoury together with taxes which have not yet been paid. Maloof admits he is obligated to pay the $1,200.

The sole issue in this case is the contention of Maloof that in accepting the assignment he obligated himself to pay the rent as a "tenant in possession," only for the period that he actually occupied the premises, and that he is not obligated to carry out all of the terms of the lease originally signed by Pappas. The question remains whether Maloof became obligated under the lease for the rental for the entire term where he accepted the assignment of the lease and the

landlord consented and rent was paid to the landlord by Maloof. It is very obvious that the plaintiff never accepted Khoury as a tenant nor was it obligated to do so under the terms of the lease. Maloof contends that in the absence of an express assumption by him of the terms of the lease, he is responsible only for the period he occupied the premises.

In the assignment the following words were contained: "Subject nevertheless to the rents covenants, conditions and provisions therein also mentioned."

The defendant relies upon the case of Meyer v. Alliance Investment Co. , 84 N.J.L. 450 (Sup. Ct. 1913). In that case plaintiff leased property to one DeJong by written lease with a covenant to pay rent and not to assign without the written consent of the lessor. DeJong assigned to Alliance. Plaintiff consented in writing, "subject to all the terms, conditions and covenants contained in the lease." Thereafter defendant reassigned to DeJong without the consent of the landlord. Rent accrued and plaintiff lessor sued Alliance. Alliance ...


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