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PMS Realty Co. v. Guarino

Decided: December 5, 1973.

PMS REALTY CO. INC., ADMINISTRATOR, PLAINTIFF,
v.
NANCY GUARINO, DORIS NICKENS, JEANETTE WIGGINS, DEFENDANTS



Albano, J.d.c.

Albano

These landlord-tenant cases were tried together and present two common questions for determination: (1) In a month-to-month tenancy, was service on the first day of one month of a notice to quit and demand for possession on the first day of the following month sufficient? (2) Was the defense of reprisal under N.J.S.A. 2A:42-10.10 established?

The proofs support a finding that on June 1, 1973 a proper notice to quit and demand for possession on July 1, 1973 was served, pursuant to N.J.S.A. 2A:18-53(a), on each defendant. N.J.S.A. 2A:18-56(b) provides that a month-to-month tenancy may be terminated only by the giving of one month's notice to quit.

The leading case in New Jersey construing a notice to quit is Steffens v. Earl, 40 N.J.L. 128 (Sup. Ct. 1878); it has been followed with approval in too many cases to cite. There, in a month-to-month tenancy beginning on the first of the month, the landlord on June 29, made demand and

gave notice in writing to its tenant to quit and surrender possession on August 1. The tenancy expired on August 1 and the tenant held over. In affirming a judgment for the landlord the court said that a notice to quit is not invalid merely because it names, as the day to quit, a day which corresponds in date with the day named in the original letting. But that case was not concerned with the date of the service of the notice to quit and demand for possession, since it was made on June 29, but with the duration of the notice and the date of termination. There was, in fact, more than a full month's time between the date of service and the date of termination.

Two cases have been cited by plaintiff as holding that service made on the first day of one month of a notice to quit and demand for possession on the first day of the following month is sufficient to terminate a month-to-month tenancy. They are Baker v. Kenny, 69 N.J.L. 180 (Sup. Ct. 1903), and Trela v. Novak, 4 N.J. Misc. 854 (Sup. Ct. 1926). A careful reading of these cases indicates that they both rely on a misconstruction of Steffens v. Earl, supra. In Baker v. Kenny, the court found a month-to-month tenancy and the necessity of a month's notice to quit to terminate the tenancy. To the defense that the notice to quit should have been served before the recurring period of the tenancy began rather than on the first day thereof, the court said:

But this ground is clearly untenable. In a tenancy by the month, the notice must be to quit on one of the recurring periods of the holding, and if the notice be served on a day of the corresponding date in the preceding month, it will be sufficient. Steffens v. Earl.

This defense, however, is not untenable, if the court relied on Steffens v. Earl, as it said it did. Steffens v. Earl was concerned with the time period and the date of termination, where notice and demand were served on June 29 for August 1, and not on July 1, so that the time period before the court was different from that in Baker v. Kenny.

Trela v. Novak, merely cited with approval and followed Baker v. Kenny, in holding notice served on the first was sufficient.

The time period referred to N.J.S.A. 2A:18-56(b) is one month. N.J.S.A. 1:1-2 defines one month as one calendar month. Should not one calendar month mean midnight of the last day of one month to midnight of the last day of the following month, and, if so, is notice on the first day a full month's notice, or something less? The question answers itself.

The concept that a month is a full month and not a month less a part of the first day of the month is buttressed by rules ...


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