For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Clifford and Schreiber and Judge Conford. For reversal -- Justice Pashman. The opinion of the court was delivered by Conford, P.J.A.D., Temporarily Assigned. Pashman, J. (dissenting).
The principal issue here is the right of a landlord to appeal a determination made by a county district court judge in the disposition of a dispossess action under N.J.S.A. 2A:18-53 et seq. Specifically, the Appellate Division entertained jurisdiction of the plaintiff landlord's appeal challenging the entry by the trial judge of an order staying issuance of a warrant for removal pending performance by the tenant of the court's stipulation that she pay her accumulated arrearage of $2199 at the rate of $100 per month (plus current rent). The Appellate Division held the action of the county district court was beyond its jurisdiction and vacated the stay, directing the warrant for removal to issue forthwith. We granted certification, 68 N.J. 149 (1975), and now conclude the determination of the Appellate Division was correct. Hence we affirm.
This controversy arises out of a "rent strike" by the tenants at plaintiff's Baxter Homes housing project in Newark. Defendant withheld payment of her rent for a twenty-two month period, upon which plaintiff brought this action to dispossess her for non-payment of rent. No contention is raised before us that the circumstances of the strike constituted a legal defense to the tenancy action. It is conceded that the defendant is substantially in arrears on the stipulation imposed by the trial judge and that the appeal might
well be regarded as moot. But we think the legal issues require adjudication in the public interest and we therefore address them.
We consider, preliminarily, defendant's contention, advanced in the Appellate Division but not here, that plaintiff was estopped to bring the action for "prejudicial delay" in instituting it. Beyond the dispositive consideration that defendant did not appeal from the judgment of possession, the assertion has no merit. Plaintiff was confronted with a crisis in the rent strike. The election as to when to avail itself of its statutory remedies was for it alone. While we do not condone a rent strike, we observe that defendant could have placed the rent money in escrow, as other tenants in such situations have commonly done. The so-called delay was not prejudicial in any sense as to which we can take cognizance.
Defendant argues that plaintiff has no statutory right of appeal. The contention has two branches: (a) the dispossess statute does not contemplate a right of appeal by a landlord in any circumstances; (b) if an appeal by a landlord is allowable at all, it may not be brought in the present instance, as here there was no "lack of jurisdiction" in the county district court, as required by N.J.S.A. 2A:18-59.
The first branch of defendant's contention does not appear to have ever been asserted in any reported case. Appeals by landlords have been rejected in dispossess actions because of failure to show the trial court lacked jurisdiction, Sbrolla v. Hess, 133 N.J.L. 71 (Sup. Ct. 1945); Terrill Manor, Inc. v. Kuckel, 94 N.J. Super. 25 (App. Div. 1967), but none on the ground that landlords are absolutely barred from appealing.
Defendant bases her contention upon the text of the statute and her conception of sound public policy. N.J.S.A. 2A:18-59 reads:
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.
On the face of the act no party is denied a right of appeal on the issue of jurisdiction. The clear implication is that any party has that right. But defendant reads the two sentences of the section together to spell out legislative contemplation that only appeals by tenants for lack of jurisdiction, not by landlords, are permissible. The point made is that the express saving to an aggrieved tenant, by the second sentence, of remedies other than appeal for unmeritorious dispossess judgments, demonstrates that by the first sentence all appeals were barred except where judgments were rendered against tenants without attendant jurisdiction. Defendant further points out that the landlord is not prejudiced by denial of appeal since he may bring another dispossess action, the adverse judgment not being res judicata, Van Vlaanderen Machine Co. v. Fox, 95 N.J.L. 40, 41 (Sup. Ct. 1920); or he may bring an action to recover possession under N.J.S.A. 2A:35-1 et seq.; or he may seek to remove a dispossess action to the Superior Court. N.J.S.A. 2A:18-60. The argument does not commend itself to us. The exception for lack of jurisdiction was written into the section in the course of the general revision in 1951 of Title 2 of the Revised Statutes of 1937. The predecessor section (R.S. 2:32-273) read:
"Proceedings had by virtue of section 2:32-265 of this title shall not be appealed nor removed by certiorari but the landlord shall remain liable in an action at law for an unlawful proceeding * * *"
As pointed out by Chief Justice Weintraub in Vineland Shopping Center, Inc. v. DeMarco, 35 N.J. 459, 462 (1961),
the former Supreme Court regarded the legislative limitation on its inherent review power by certiorari as not binding on it, and it would therefore entertain an application for the writ where it was asserted the dispossess tribunal had acted without jurisdiction, but only in such case. It is significant that in one of the last reported cases applying the predecessor statute before its revision in 1951, Sbrolla v. Hess, supra, the court, while rejecting the contention of an appealing landlord that the district court had acted without jurisdiction, did not suggest that there was no right of appellate review by the landlord even if he could show lack of jurisdiction below.
We conclude that the history of the statute does not support defendant's contention that only tenants, not landlords, may bring appeals from tenancy proceedings on jurisdictional grounds. Nor are we persuaded to arrive at such a construction of the act now for policy reasons. As will be presently seen, the jurisdictional basis for appeals by tenants in dispossess actions has been vastly expanded as a result of our decision in Marini v. Ireland, 56 N.J. 130 (1970). Pending any revision of this statutory subject matter by the Legislature -- an undertaking obviously needed -- our view is that it is consistent with sound policy that the appellate standing of landlords and tenants in this area should continue on a parity.
We turn to defendant's contention that the county district court had jurisdiction to fix the terms of the warrant for removal and that therefore the statute precludes an appeal. The plaintiff's response is that since the statute contains no authority to suspend a warrant for removal for a potential period of 22 months the action of the trial court was devoid of jurisdictional foundation and therefore appealable on that ground. Ivy Hill Park Section Five, Inc. v. Handa, 121 N.J. Super. 366 (App. Div. 1972); Charlie Collins Chevrolet v. Zebrowski, 130 N.J. Super. 116 (App. Div. 1974).
Consideration of the issue requires preliminary recognition that the concept of "jurisdiction" has been understood in a wide variety of ways, depending upon the particular context of application. See 50 C.J.S., Jurisdiction, pp. 1089-1090. In Sbrolla v. Hess, supra (133 N.J.L. at 72), Justice Case purported to apply, in this context, the classic notion of jurisdiction of courts, i.e., requiring (a) cognizance of the class of cases involved; (b) presence of proper parties; (c) comprehension within the issues of the point decided. But an examination of the tenancy cases cited in Vineland Shopping Center, Inc. v. DeMarco, supra, demonstrates that jurisdictional lack has over the years been found in various kinds of defects and errors far beyond the narrow limitations of Sbrolla. See 35 N.J. at 462, 463, 464. It is, moreover, particularly difficult to reconcile cases applying the Sbrolla thesis that decisional error on the merits is not jurisdictional for appellate purposes, cf. Leachman v. Kite, 133 N.J.L. 240, 241 (Sup. Ct. 1945), aff'd o.b. 133 N.J.L. 612 (E & A. 1946), with the line of cases cited in Vineland Shopping Center, Inc. v. DeMarco, supra, 35 N.J. at 464. The latter hold or imply that there must be some evidence from which the trial court can find the existence of a statutory basis for removal or else there is jurisdictional error engendering a right of appeal from a judgment for possession on the part of the tenant.
The conceptual fog in the supposed distinction between meritorious errors and jurisdictional defects was considerably dissipated by the decision of this court in Marini v. Ireland, supra. The effect of the decision, at least for purposes of the right of appeal by tenants, was substantially to eliminate the distinction. There, where the landlord's right to dispossess was founded upon non-payment of rent, the court held that determination by the trial court of the amount of rent due went both to the merits and to jurisdiction. 56 N.J. at 139, 140. While we do not need to decide the point here, and we reserve it, see Levine v. Seidel, 128 N.J. Super. 225 (App. Div.
1974), certif. den. 65 N.J. 570 (1974), it would, in the light of Marini, appear logical for a landlord aggrieved by a determination as to the amount of rent owing, to argue that a jurisdictional error has been made, giving him a right to appeal.
However, the precise issue before us can be decided on narrower grounds. The statute specifies the bounds of the court's power to stay a warrant for removal. N.J.S.A. 2A:18-57 reads:
If no sufficient cause is shown to the contrary when the action comes on for trial, the court shall issue its warrant to any officer of the court, commanding him to remove all persons from the premises, and to put the claimant into full possession thereof, and to levy and make the costs out of the goods and chattels of the person in possession.
No warrant of removal shall issue until the expiration of 3 days after entry of judgment for possession.
The act plainly means that unless the tenant at the trial demonstrates the absence of proof of the statutory requisites for a judgment for possession the court shall ordinarily issue its warrant for removal forthwith after the expiration of three days from entry of the judgment for possession. It does not mean by the clause, "if no sufficient cause is shown to the contrary * * *", as contended by defendant, that the court has authority in its discretion to hold up issuance or stay the warrant for removal for as long as may seem equitable to the judge. The cited language is found in the predecessor statutes going back into the last century (see R.S. 2:32-271 and source note), and it is unquestionable that the basic purpose of the summary proceedings was to permit prompt recovery of the premises by the landlord. Vineland Shopping Center, Inc. v. DeMarco, supra, 35 N.J. at 462.
The foregoing is not to say that the court does not have inherent discretion, as district court judges have assumed for decades, to stay the warrant for a reasonable time to permit a tenant in distressed circumstances to arrange for
his voluntary removal from the premises. It is to say that nothing like the authority assumed by the trial judge here is remotely within the statutory contemplation.
These conclusions are buttressed by the carefully circumscribed statute which the Legislature adopted in 1957 (c. 110), N.J.S.A. 2A:42-10.6, permitting a judge in a possessory action of any type to stay a warrant for removal from dwelling premises, but not in excess of six months after entry of a judgment for possession, where it appears that hardship is presented because of the unavailability of other dwelling accommodations. The Appellate Division has correctly held in this and other recent cases that extended stays of warrants for removal in situations not coming within the prescription of this statute are invalid as beyond the jurisdiction of ...