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Mury v. Tublitz

Decided: June 21, 1977.

LEONARD G. MURY AND DORIS J. MURY, PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS,
v.
MINDELE TUBLITZ AND RAYMOND TUBLITZ D/B/A CHATHAM HILL APARTMENTS, DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS



Matthews, Seidman and Horn.

Per Curiam

Defendants appeal from a judgment entered against them on April 30, 1976 in the Morris County District Court for $623.75 together with interest at 4 1/2% a year from July 16, 1975. Plaintiffs cross-appeal from the trial judge's denial of double damages under N.J.S.A. 46:8-21.1.

Plaintiff tenants entered into a lease with defendant landlords on April 25, 1973 by the terms of which plaintiffs leased a single bedroom apartment in defendants' apartment house for two years at a rental of $390 a month for the first year and $410 a month for the second year which expired May 31, 1975.

Plaintiffs deposited with defendants $585 "as security for the full and faithful performance by the Tenant[s] of all the terms and conditions upon the Tenant[s'] part to be performed," to be returned with interest within 30 days after the expiration of the lease "after the Tenant[s] [have] fully and faithfully carried out all of the terms,

covenants and conditions on [their] part to be performed * * *."

The lease also provided:

43. That the Tenant agrees to pay as additional rent, all attorneys' fees and other expenses incurred by the Landlord in the enforcement of any of the agreements, covenants and obligations under this lease including legal fees that may accrue in the event suit for rent or dispossess proceedings are necessary to obtain the possession of the premises or to collect the rent which legal fees, as added rent shall be a minimum of 25 percent of all moneys outstanding which Tenant hereby agrees is a reasonable charge.

On April 8, 1975 defendants wrote to plaintiffs advising them of their willingness to renew the tenancy. Having no response from plaintiffs, defendants sent a follow-up letter on April 22, 1975, restating the intent of the landlords to renew the lease. Plaintiffs still did not respond to this second communication, so on April 25, 1975 defendants contacted plaintiffs by telephone and were advised that plaintiffs did not intend to relet the apartment. On this last date defendants forwarded a letter to plaintiffs confirming the intent of the tenants to terminate their lease on May 31, 1975. Defendants subsequently executed a lease for the apartment with other persons, to commence June 1, 1975. Plaintiffs failed to vacate the apartment at the end of their lease. They advised defendants that they were seeking new quarters but were uncertain as to the date when they would be able to move.

Defendants then filed a complaint in the Chancery Division, seeking relief in view of the dilemma confronting them through their inability to deliver possession of the apartment to the new tenants by reason of plaintiffs' failure to vacate the premises. Upon the return of an order to show cause why plaintiffs should not be ejected from the premises, a consent order was entered directing plaintiffs to relinquish possession of the premises on June 28, 1975 and to pay rent for the month of June 1975.

On July 18, 1975 defendants accounted to plaintiffs for their security deposit. The total amount of the security deposit was stated to be $623.75. Defendants applied this amount to their attorney's fee and costs of $710 ($650 and $60, respectively). They requested plaintiffs to remit the balance of $86.25. Plaintiffs thereafter on October 23, 1975 instituted an action in the county district court for double the amount of the security deposit, pursuant to N.J.S.A. 46:8-21.1. Defendants denied liability and counterclaimed for the $710 paid to their attorney.

The judge determined the issue adversely to defendants on plaintiffs' contested motion for summary judgment. However, he declined plaintiffs' demand for double damages. Accordingly, judgment was ...


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