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Azar v. Jabra

March 28, 1979

AYUB AND HOSANNA AZAR, PLAINTIFFS,
v.
MASOUD AND RENATA JABRA, DEFENDANTS. SIEBERT CLARK, PLAINTIFF, V. ALFONSO CARTER AND ELIZABETH REED CARTER, DEFENDANT



Taylor, J.d.c.

Taylor

These are two motions heard together, both of which seek a direction to the Clerk of the Bergen County District Court to issue a warrant commanding the constable to remove defendant tenants from the subject premises and putting claimant landlord into full possession thereof.

In the Azar case the landlord sought possession in an eviction proceeding for failure of the tenant to pay a $50 increase. The trial judge found the increase reasonable and on February 20, 1979 gave judgment for possession, with the proviso that a warrant issue in three days. Within the three-day period the tenant paid the disputed rent increase and court costs to the Clerk of the Bergen County District Court. On the same day the landlord tendered his check to the clerk covering the costs of the issuance of a warrant. Said tender was not accepted by the clerk since the rent had been paid prior to the application for issuance of the warrant.

In the Clark case the landlord sought possession in an eviction proceeding for failure of the tenant to pay the February rent due and owing. On default of the tenant the trial judge, on February 21, 1979, gave judgment for possession, with the proviso that a warrant issue in three days. Due to the intervention of a holiday and weekend, the period ended on February 26, 1979. On that date the tenant paid the full rent and court costs to the clerk. On February 27, 1979 the landlord sought issuance of a warrant

and was refused by the clerk since the rent had been paid on the previous day.

It is the contention of the landlord in both cases that payment pursuant to N.J.S.A. 2A:18-55 can be made only up to the close of court business on the day that judgment for possession is granted. It is the contention of the tenants that payment may be made at least up to the issuance of the warrant at the end of the three-day period provided in N.J.S.A. 2A:18-57.

To decide these issues, it is necessary to review both the legislative histories of N.J.S.A. 2A:18-57 and N.J.S.A. 2A:18-55 and the policy of the courts in eviction cases.

Legislative Intent

The historical note to N.J.S.A. 2A:18-57 refers to its source as initially L. 1898, c. 228, § 111. This statute is part of a series of sections, 107-117, covering landlord and tenant cases, and they are strikingly similar to the present day sections, which include N.J.S.A. 2A:18-57 and N.J.S.A. 2A:18-55. Section 111 states in part:

If at the time appointed in the said summons, or at the time to which said suit may be adjourned, no sufficient cause be shown to the contrary, and it shall appear to the said judge that the summons has been duly served and that the rent claimed and costs accrued have not been paid, the said court shall forthwith issue its warrant to any constable of the county, in which the premises are situate, or sergeant-at-arms of the court, commanding him to remove all persons from said premises, and to put the said claimant into full possession thereof, and to levy and to make the costs out of the goods and chattels of such person or persons in possession; * * *.

Section 108 of the same set of laws, after setting forth procedural steps from summons to trial date, states:

It can be seen, therefore, that the genesis of N.J.S.A. 2A:18-57 is in § 111, and that of N.J.S.A. 2A:18-55 in § 108. There was no mention in either of the old sections of a judgment for possession preceding the issuance of the court's warrant. The statute directed that the warrant issue on the return date of the summons and that warrant was to direct the constable to put the claimant in possession. Therefore, the judgment envisioned by the Laws of 1898 was the actual issuance of the warrant to the constable.

Conversely, payment made by the tenant under § 108, before the return date of the summons and consequently before the issuance of the warrant, would stop the proceedings. The intent of the Legislature was that payment before the issuance of the warrant would stay the proceedings.

The laws dealing with eviction proceedings were amended in 1903. The L. 1903, c. 13, § 5, introduced the concept of judgment for possession and a three-day wait from judgment to issuance of the warrant for possession. The applicable statute read:

If at the time appointed in the said summons, or at the time to which said suit may be adjourned, no sufficient cause be shown to the contrary, and it shall appear to the said judge or justice of the peace that the summons has been duly served and (in cases arising under subdivision II of section one of this act) that the rent claimed and costs accrued have not been paid, the said court or justice of the peace shall forthwith enter a judgment for possession and shall issue a warrant to any constable of the county, in which the premises are situate, or sergeant-at-arms of the court, commanding him to remove all persons from the said premises, and to put the said claimant into full possession thereof, and to levy and make the costs out of the goods and chattels of such person or persons in possession;

provided , it shall be necessary for said claimant, if required by the defendant, to prove to the satisfaction of the judge or the justice of the peace, or of the jury if there be a trial by jury, the facts which, according to the first section of this act authorize such proceedings against the tenant; and whenever in any suit for dispossession of a tenant, on the return day of a summons, or any adjourned day, there is no appearance by or on behalf of any tenant named therein, or if any defendant shall appear, but make no defence, the court or the justice of the peace may, if it appear that the summons has been duly issued and served, hear and determine the cause upon the affidavit filed, without the production of any witnesses or other proofs; provided , that no such warrant of removal shall issue until after the expiration of three days after the entry of judgment for possession.

There is no explanation as to why these new elements were added, or the reason for separating judgment for possession from the actual issuance of the warrant.

In 1935 the Chancery Court, in construing the above act, had before it a dispossess action in which the disputed rent had been paid prior to the adjourned date of the summons. The bill was filed after the entry of judgment but before the issuance of a warrant. The court, in deciding that the payment of rent prior to the adjourned date should relieve the tenant, said:

Where the attempted forfeiture is based upon the non-payment of rent, relief is uniformly given upon payment of the amount due with appropriate interest and costs. Where the forfeiture is provided for merely as security for the payment of money 'equity regards such payment as the real and principal intent of the instrument' and will relieve upon payment. 1 Pom. (4th ed.) Secs. 381, 433. . . .

It is not now disputed that if the lessee had made its deposit in the district court prior to the return day of the summons in the dispossess proceedings, the lessor would have been obliged to accept it and the lessee would have been protected in its possession; and that before entry of the judgment of this court could have properly restrained the proceedings. [ Red Oaks v. Dorez, Inc. , 118 N.J. Eq. 198 (1935), rev'd on other grounds 120 N.J. Eq. 282 (E. & A. 1936)]

Vice Chancellor Berry continued:


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