Miller, J.s.c. (temporarily assigned).
[169 NJSuper Page 48] This is an opinion amplifying the reasons for orders heretofore entered in this summary dispossess action. Plaintiff-landlord's notice of appeal was not received by this court. It recently
became aware of the appeal when a slip opinion involving issues in this case was sent to it as a courtesy by plaintiff's attorney on May 8, 1979. R. 2:5-1(b) limits the court to 15 days from receipt of the notice of appeal to submit an amplification; however, Appellate Division jurisdiction is not lost by failure to give notice to the trial judge, the trial judge should not be precluded from filing a late amplification in the circumstance where he does not receive notice. R. 1:1-2.
The two orders which are the apparent subject of appeal are this court's order of June 1978 permitting trial of the matter, including the habitability defense, without requiring a formal escrow, and the order of August 1978 dismissing the action when defendant paid the full amount of rent due and owing after the entry of the judgment for possession but before three days expired.
The relevant facts as to the issue of whether the habitability defense requires a formal escrow of funds are that the attorneys for the parties believed they had reached a settlement agreement in the summer of 1977. Defendant refused to consent after changes were made in the order prepared by his counsel after the proposed order was sent to plaintiff's counsel. The case remained dormant until May 1978, when plaintiff moved to enforce the settlement. Because of the problems in agreeing on the order, the court concluded that a settlement had not been reached with full consent of the parties and ordered a trial. See Stonehurst at Freehold, etc. v. Freehold Tp. Comm. , 139 N.J. Super. 311 (Law Div. 1976). At the time of the hearing on the motion to enforce settlement, defendant represented that he intended to raise a habitability defense and that he had been accumulating the rent monies in a savings account in his own name. Upon examining the deposit book this court decided that, notwithstanding that half the money had been deposited during the previous two weeks, the monies were sufficient to meet the alleged deficiency in rental payments and that the
habitabilty defense would be included in the trial of the action.
Plaintiff objected on the basis that the escrow did not involve a loss of control by defendant and was therefore not adequate to protect plaintiff-landlord and to insure that the defense was raised in good faith.
In Edmond v. Waters , 149 N.J. Super. 579 (App. Div. 1977), the court held that it is improper, when trial is imminent and no further delay contemplated, to require a deposit of unpaid rent. Id. at 581. This decision was reached in reliance on the following language from Marini v. Ireland , 56 N.J. 130 (1970):
We realize that the foregoing may increase the trials and appeals in landlord and tenant dispossess cases and thus increase the burden of the judiciary. By way of warning, however, it should be noted that the foregoing does not constitute an invitation to obstruct the recovery of possession by a landlord legitimately entitled thereto. It is therefore suggested that if the trial of the matter is delayed the defendant may be required to deposit the full amount of unpaid rent in order to protect the landlord if he prevails. [At 147]
Reading these two cases together leads this court to conclude that when trial is not imminent, it is a judge's discretionary function to determine whether to require "a deposit." The Supreme Court's dictum in Marini v. Ireland is a suggestion that "a deposit" may be required. The term "deposit" in this context is not yet defined. The only type of "deposit" that is clearly erroneous according to Appellate Division decisions yet rendered is to require payment to the landlord, Edmond v. Waters, supra , 149 N.J. Super. at 581. Because it is apparent to this court that when "further delay [is] contemplated," id. , it has discretion to require "a deposit" the nature of which is yet undefined, it has discretion to decide the type of "deposit" that is required.
One reason for requiring "a deposit" that has been expressed in our case law is to protect the ...