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25 Fairmount Avenue Inc. v. Stockton

September 27, 1974

25 FAIRMOUNT AVENUE, INC., PLAINTIFF,
v.
MR. & MRS. ROBERT H. STOCKTON, DEFENDANTS



Huot, J.d.c.

Huot

The motion to dismiss this landlord-tenant summary dispossess action raises the question of the applicability of the recent amendment of N.J.S.A. 2A:18-53 (L. 1974, c. 49), particularly to contracts between the parties prior to the effective date of this new legislation.

Defendants were tenants of plaintiff by virtue of a lease which expired June 30, 1974. The parties stipulate that the three-month notice required by N.J.S.A. 2A:18-56 was properly given and received.

June 30, 1974 passed and the defendants remained in possession. This action was commenced on July 17, 1974 and was heard, after consent adjournments, on August 20, 1974. At that time defendant moved to dismiss the complaint on the grounds that plaintiff had failed to serve a notice setting forth "cause" as required by L. 1974, c. 49. Defendant contends that he may not be dispossesed because the landlord has failed to comply with ยง 3 of the act, which prohibits the entry of a judgment for possession except upon a notice of and a showing of "good cause."

Plaintiff contends that it acquired a vested right to terminate the tenancy and recover the premises by the stipulation of proper notice, and that L. 1974, c. 49, cannot divest it of this right. It further contends that the recent amendment affects substantive rights and is not remedial or procedural. Plaintiff argues that since it is a vested, substantive right, the statute may not retroactively apply to divest that right which is protected by the State and Federal Constitutions.

The initial question to be determined, then, is whether L. 1974, c. 49, affects the substantive rights of landlords and tenants or whether it merely establishes a prerequisite to the exercise of jurisdiction by this court. If it is procedural only, it does not affect any basic right but merely contains the method by which those independent rights shall be enforced. And, if this be so, the court need not meet the issue raised by plaintiff of retroactive applicability. That is because the

statute would apply prospectively to the exercise of jurisdiction from and after June 25, 1974. If, on the other hand, the statute affects substantive rights, the issue of the constitutional retroactivity must be decided.

N.J.S.A. 2A:6-34 provides, among other things, that "county district courts shall also have jurisdiction in proceedings between landlords and tenants * * *."

N.J.S.A. 2A:18 is entitled, "Civil Actions in County District Courts," and consists of 11 articles or chapters, further subdivided by sections. It first appeared as chapter 228 Laws of 1898 and was entitled, "An Act Concerning District Courts."

That act was construed by the courts to be one granting jurisdiction but not affecting the substantive rights of landlords or tenants. That the act was jurisdictional was determined in Jonas Glass Co. v. Ross, 69 N.J.L. 157 (Sup. Ct. 1903). There the court held that the section purporting to authorize the removal of tenants was strictly a jurisdictional one. It said:

Under an appropriate title such legislation would apply to every case within its terms, but under a title embracing nothing beyond judicial jurisdiction and procedure it can extend only to cases where, independent of the enactment, a landlord has the right to recover possession of the demised premises in default of payment of rent. Under article 4, section 7, paragraph 4 of the constitution the object of a law must be expressed in its title, and the title of that cited does not indicate a purpose to declare or change the relative rights of landlords and tenants. [at 158; emphasis supplied]

In contrast, those acts which became part of N.J.S.A. 2A:42-1 et seq., originating in 1874, were differently entitled.

Chapter 164, Laws of 1874, was entitled, "A further supplement to an act entitled 'An act concerning landlords and tenants,' approved April fifteenth, one thousand eight hundred and forty-six."

Chapter 13, Laws of 1903 was entitled, "A Further Supplement to an act entitled 'An act concerning landlords and

tenants,' approved March twenty-seventh, one thousand eight hundred ...


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