Meanor, J.c.c. (temporarily assigned).
This is a motion by defendant tenants under N.J.S.A. 2A:18-60 to remove these six summary actions for possession to the Superior Court for trial. See Master Auto Parts, Inc. v. M. & M. Shoes, Inc. , 105 N.J. Super. 49 (App. Div. 1969). It is sought by removal to utilize Superior Court jurisdiction to determine on the merits an asserted defense to the actions which it is claimed the county district court lacks power to hear.
The summary action for possession provided by N.J.S.A. 2A:18-51 et seq. was reviewed in Vineland Shopping Center, Inc. v. DeMarco , 35 N.J. 459 (1961). There is no appeal from a county district court judgment in such a case unless the challenge be on jurisdictional grounds. N.J.S.A. 2A:18-59; Davidson v. Burstein , 10 N.J. Super. 91
(App. Div. 1950). After the transfer, however, a Superior Court judgment is appealable. N.J.S.A. 2A:18-61. Matters determined in a summary action for possession are not res judicata in a subsequent action between landlord and tenant, even over the same subject matter. Vineland Shopping Center, Inc. v. DeMarco, supra , at 462; Van Vlaanderen Machine Co. v. Fox , 95 N.J.L. 40 (Sup. Ct. 1920); Terrill Manor, Inc. v. Kuckel , 94 N.J. Super. 25, 28 (App. Div. 1967).
The grounds upon which a landlord may summarily seek possession are set forth in N.J.S.A. 2A:18-53. The most common ground advanced and the one set forth here is, of course, nonpayment of rent. N.J.S.A. 2A:18-53(b). A landlord who unjustifiably seeks and obtains possession may later be held to respond in damages. N.J.S.A. 2A:18-59; Construction and Renting Corp. v. Stein , 6 N.J. Super. 239 (App. Div. 1950); Lyster v. Berberich , 3 N.J. Super. 78 (App. Div. 1949).
Where the ground upon which possession is sought is nonpayment of rent, the tenant may cause the proceedings to cease because of loss of jurisdiction by payment to the clerk of the county district court, "on or before entry of final judgment," of the amount in which he is in default plus costs of the proceeding. N.J.S.A. 2A:18-55; Saveriano v. Saracco , 97 N.J. Super. 43, 47 (App. Div. 1967). Since under N.J.S.A. 2A:18-57 a warrant for possession may not issue until the expiration of three days after entry of judgment for possession, the tenant as a practical matter has three days in which to pay the amount he is in default in order to remain in possession.
The position of the tenants here is that plaintiff has violated the implied warranty of habitability provided by Reste Realty Corporation v. Cooper , 53 N.J. 444 (1969), and thus there has been at least a partial failure of consideration. Compare Unico v. Owen , 50 N.J. 101 (1967).
Under present practice the county district court does not permit litigation of the issue of habitability in a summary
action for possession. The tenant in default for nonpayment of rent may forestall eviction only by payment of back rent according to the express terms of his lease -- and this is true even if there has been a material failure of consideration because of the landlord's breach of his warranty of habitability. The remedy, it is said, for a tenant who wishes to or must remain in possession is to pay in full the amount called for by the lease and then bring an independent action to recover as damages some of the amount so paid, asserting a partial failure of consideration because of a breach of the warranty of habitability. Thus, a tenant victimized by a landlord's breach of warranty may face the unhappy choice between eviction or payment of money which he does not owe. And a landlord guilty of the most flagrant breach may still evict his tenant or collect in full, and this is true even if the tenant's money is paid to the clerk of the court, for the latter is obligated to turn such funds over to the landlord "forthwith." N.J.S.A. 2A:18-55. While it is possible that any wrongs done to the tenant may be righted in a subsequent action for damages, the tenant who remains in possession (perhaps by the press of economic circumstances coupled with the shortage of adequate housing) has at least been deprived during the period of subsequent litigation of the use of money he should not have had to pay, and the landlord unjustifiably enjoys it for the same span of time.
Where the nonpayment of rent is the basis upon which the landlord seeks possession, it is essential that he establish this default. If the tenant contests the assertion of nonpayment, the county district court must try the issue, including the merits of any equitable bar raised to aid the tenant in meeting the allegation. Vineland Shopping Center, Inc. v. DeMarco, supra. It is a corollary of this that where the extent of the default is disputed, the county district court is obligated to decide that issue as well. If the ...