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Workman''s Automatic Music Service Inc. v. New Colony Diner Inc.

August 19, 1975

WORKMAN'S AUTOMATIC MUSIC SERVICE, INC., A PENNSYLVANIA CORPORATION, PLAINTIFF,
v.
NEW COLONY DINER, INC., DEFENDANT



Di Martino, P.J.D.C.

DI Martino

[136 NJSuper Page 131] This matter is presently before the court on an application to direct the clerk to issue a warrant for removal of the tenant.

The factual background is important to a determination of this issue. Plaintiff landlord instituted a dispossess proceeding under N.J.S.A. 2A:18-53(b) for nonpayment of rent due and owing through May 1975 in the amount of $3,624.97. Thereafter the landlord made a motion for summary judgment, alleging that there was no substantial issue of fact and that it was entitled to a judgment as a matter of law. On the return day of the motion it was noted by the court that the tenant did not file counter-affidavits, but upon request of counsel continued the motion for one week to permit the filing of an affidavit. On August 8, 1975 the court denied the application for summary judgment and scheduled the trial for August 12, 1975.

Prior to trial counsel stipulated that the complaint be amended to include allegations that the rents for June, July and August were also not paid, and these months were also to be considered as part of the cause of action.

Testimony was received and the court determined that defendant was in arrears in the amount of $6,246.38 and accordingly granted judgment for possession in favor of plaintiff.

There is no dispute that on August 15, 1975 the tenant offered a cashier's check for the full amount of the arrearages plus costs, and the landlord refused to accept the tender.

On August 18, 1975 the court was advised of the tender. The tenant then deposited the amount of the arrearages plus costs with the clerk of the county district court.

The reason that the amount involved is so substantial is because the demised premises are commercial and involve a diner. The position of the tenant is that by the payment of the proceeds into court the proceedings must cease because of the provisions of N.J.S.A. 2A:18-55. That statute provides that 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 the entry of final judgment."

The tenant herein relies upon the language of County Judge Meanor in Academy Spires, Inc. v. Jones , 108 N.J. Super. 395 (Law Div. 1970), as follows:

Since under N.J.S.A. 2A:18-57, a warrant for possession may not issue for three days after 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.

This issue does not appear to have been decided by any appellate court of our State. Succinctly stated, the issue is whether the rent can be paid within three days of the entry of final ...


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