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Saveriano v. Saracco

Decided: September 29, 1967.

CONCETTA SAVERIANO, PLAINTIFF-RESPONDENT,
v.
PHILOMENA SARACCO AND SEBASTIAN SARACCO, DEFENDANTS-APPELLANTS



Goldmann, Kilkenny and Carton. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

[97 NJSuper Page 44] Defendants appeal from a county district court judgment for possession, as well as from the order for warrant for possession, in a summary dispossess

action under N.J.S. 2A:18-53(b) brought by plaintiff for failure to pay rent. The appeal comes before us on a statement in lieu of record approved by the trial judge. R.R. 1:6-3.

The position taken by defendants at the trial was that they had mailed the rental checks for the month in issue, and if plaintiff had not received them they were willing to pay the rent into court forthwith. The trial judge nonetheless entered judgment for possession on August 12, 1966, with the direction, "Warrant not to issue; Hold." Defendants thereupon immediately paid to the clerk of the court the rent in question and costs, totalling $157.90. On November 30, 1966 plaintiff moved on a rule to show cause why the warrant for possession should not issue. After considering the affidavits filed and the arguments of counsel, the motion was granted. Thereafter, upon representation by defense counsel that he would forthwith take an appeal, the trial judge stayed the issuance of the warrant for possession pending determination of such appeal.

The only question here is whether the trial court had jurisdiction to direct the issuance of a warrant for possession. Indeed, jurisdiction is the only question that may be presented on appeal, N.J.S. 2A:18-59 providing, in pertinent part, that "Proceedings had by virtue of this article [ N.J.S. 2A:18-53 et seq. ] shall not be appealable except on the ground of lack of jurisdiction."

Did jurisdiction terminate with the payment of the rent and costs to the clerk? This question must be answered in light of N.J.S. 2A:18-55, which reads:

"If, in actions instituted under paragraph 'b' of section 2A:18-53 of this title, the tenant or person in possession of the demised premises shall at any time on or before entry of final judgment, pay to the clerk of the court the rent claimed to be in default, together with the accrued costs of the proceedings, all proceedings shall be stopped. The receipt of the clerk shall be evidence of such payment.

The clerk shall forthwith pay all moneys so received to the landlord, his agent or assigns." (Italics ours)

The policy reflected in cases dealing with summary proceedings of the type here involved is that where there is an alleged failure to pay rent, forfeiture is to be avoided where the rent and costs have actually been paid. This general view applies at least where payment is made before final judgment. Cf., e.g, Vineland Shopping Center, Inc. v. De Marco, 35 N.J. 459 (1961); Seidel v. Cahajla, 129 N.J.L. 314 (Sup. Ct. 1943). The De Marco court held that inasmuch as equity could prevent a forfeiture under the facts there present, the county district court, which must apply the rules of court prevailing with respect to the raising of equitable defenses (see R.R. 5:2-1), should have considered the equitable defense of payment before suit under the appropriate statute, so as to prevent forfeiture. The court said:

"* * * [T]he summary proceeding is designed to secure performance of the rental obligation, and hence, it having been performed, the summary remedy may not be further pursued." (at page 469)

The order of dispossession for nonpayment of rent was therefore reversed.

By contrast to De Marco, where the rent obligation was paid before final judgment, in this case the rent was not paid until directly after final judgment was entered, although ...


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