For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the Court was delivered by Haneman, J.
This matter concerns the appealability of County District Court landlord and tenant dispossess judgments; the scope of a landlord's duty to make repairs; and the right to offset the cost of such repairs against accruing rent on the failure of the landlord to make same, if found to be required.
On or about April 2, 1969, plaintiff, landlord, and defendant, tenant, entered into a one-year lease for an apartment located in a two-family duplex building at 503-B Rand Street, Camden, New Jersey. The annual rent of $1,140 was agreed to be paid in monthly installments of $95. The lease incorporated a covenant of quiet enjoyment but did not include a specific covenant for repairs.
On or about June 25, 1969, defendant alleges that she discovered that the toilet in the leased apartment was cracked and water was leaking onto the bathroom floor. She further alleges that repeated attempts to inform plaintiff of this condition were unsuccessful. On or about June 27, 1969, defendant hired one Karl T. Bittner, a registered plumber, to repair the toilet. Bittner repaired the toilet at a cost of $85.72, which the tenant paid.
On July 15, 1969, defendant mailed plaintiff a check for $9.28 together with the receipt for $85.72 in payment of
the July rent. Plaintiff challenged the offsetting of the cost of the repair and demanded the outstanding $85.72.
When his demands were refused, plaintiff instituted a summary dispossess action for nonpayment of rent in the Camden County District Court pursuant to N.J.S.A. 2A:18-53(b) alleging the nonpayment of the July rent in the amount of $85.72 and August rent of $95. A hearing was had on August 15, 1969. Plaintiff argued that he was entitled to the $85.72 because he had no duty to make repairs and consequently, defendant's payment of the cost of repair could not be offset against rent.
The judge conceived the issue as entirely a legal one and determined that the facts which defendant alleged did not create a duty upon the landlord to make repairs. Thus, without trying out the issues tendered by defendant, he found a default in payment of rent of $85.72 (July) and $95 (August) plus costs and rendered a judgment for possession. Defendant appealed to the Appellate Division.
On August 29, 1969, a judge of the Appellate Division granted a temporary stay of the judgment for possession and the warrant of eviction. The Appellate Division granted a stay pending appeal on September 23, 1969 and ordered defendant to pay all the rents then due except the contested July rent. The Appellate Division also then denied plaintiff's cross-motion to dismiss the appeal. Before the Appellate Division heard argument, this Court certified the case on its own motion. R. 2:12-1.
The issues which evolve on this appeal are: Did defendant's claimed right to offset her cost of repairs against rent raise a "jurisdictional" issue? If the answer to that query is in the affirmative, did the landlord have a duty to repair and may the issue of failure to comply with such duty be raised in a dispossess action? Also involved in the latter question is the right of the tenant to make repairs upon the landlord's failure to so do and the right to offset the cost thereof against rent.
N.J.S.A. 2A:18-53 provides in part:
"Any lessee or tenant * * * of any houses, buildings, lands or tenements, * * * may be removed from such premises by the county district court of the county within which such premises are situated, in an action in the following cases:
"b. Where such person shall hold over after a default in the payment of rent, pursuant to the agreement under which the premises are held."
"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."
As noted, N.J.S.A. 2A:18-59 permits review of the County District Court's judgment only on the question of lack of jurisdiction. Plaintiff rationalizes that as defendant acknowledges that the rent asserted by plaintiff to be due for the month of July was not paid in full as provided in the lease, a defense grounded upon an allegation that the unpaid balance is not owing raises a "meritorious" issue. He states that defendant's contest of the amount due directs an attack upon plaintiff's right to possession rather than an attack upon the jurisdictional basis of his action. Plaintiff argues that the admitted failure to pay in full is, in the language of the statute, a "default" and vests the County District Court with jurisdiction to order a removal of the tenant.
Defendant on the other hand, contends that the County District Court has jurisdiction in dispossess actions only in those factual complexes specified in N.J.S.A. 2A:18-53 -- here, for a "default in the payment of rent." The issue of the amount of rent due, says defendant, raising as it does the issue of the default alleged by the complaint, is directed at the jurisdiction of the County District Court and a determination
rejecting her defense of non-default, in whole or part, is therefore appealable under N.J.S.A. 2A:18-59.
The County District Court in the present matter, is vested with jurisdiction as noted, only where there exists a rent default. The complaint must delineate specific allegations of fact giving rise to such a default.
While dealing with the following cases cited in connection with the foregoing, it must be remembered that originally an action for possession was commenced before a justice of the peace by filing an affidavit. Later the jurisdiction was transferred to the District Court, but the action continued to be commenced by the filing of an affidavit. In Earl v. Krug Baking Co., 22 N.J. Misc. 424 (Cir. Ct. 1944), the court said in that connection at p. 425:
"Summary proceedings in the district court for the dispossession of tenants may be described as a statutory substitute for the common law action in ejectment, and although the proceedings are emomenced by the filing of the jurisdictional affidavit, that affidavit is nonetheless a complaint in the ordinary acceptation of the term."
Presently the affidavit has been superseded by a complaint. R. 6:3-1. What is said in the following cases concerning affidavits is equally applicable to presently employed complaints. As early as Fowler v. Roe, 25 N.J.L. 549 (Sup. Ct. 1856), the court said, at p. 551:
"In this summary proceeding before a justice of the peace, to turn one man out of the possession of the premises he occupies, and put another in, the power is delegated by special statutory authority to a court having no jurisdiction to try the title to lands, and can only be exercised where all the prerequisites to its exercise ...