On appeal from the Cumberland County District Court.
Bischoff, Botter and Dwyer.
Plaintiff landlord appeals from the order dismissing summary dispossess proceedings against defendant tenant, entered on August 14, 1978. On that date defendant applied for an order to show cause with temporary restraints against execution of the warrant of removal. This warrant was issued following entry of judgment of possession in favor of plaintiff on the ground of nonpayment of rent. However, since the warrant was issued prior to the expiration of the three-day time period prescribed in N.J.S.A. 2A:18-57, it was void. The judge did not sign the order to show cause but ordered the proceeding dismissed on the ground that defendant had paid the rent found to be due and owing. On this appeal plaintiff, in essence, contends that once he obtained a judgment of possession the court was without jurisdiction to subsequently terminate the proceedings. Defendant counters that the summary dispossess proceeding under the Landlord and Tenant Act, N.J.S.A. 2A:18-53 et seq. , allows a tenant to remain in possession by paying the rent at any time prior to the issuance of the warrant. Alternatively, defendant contends that under the circumstances of this case it would be inequitable to permit plaintiff to evict him.
The relevant facts are not in dispute. Plaintiff owns and operates a trailer park in Fairfield Township, where defendant is a tenant. In the summer of 1976 defendant began to withhold rent on the ground that the pad for his trailer was not level and this condition rendered his trailer uninhabitable. Nearly a
year later plaintiff instituted this summary dispossess proceeding on the ground of nonpayment of rent. N.J.S.A. 2A:18-61.1(a). Attempts to settle the matter were unsuccessful. Pending the outcome of the litigation defendant had been depositing in a savings account sums sufficient to pay the accruing rent.
The dispossess action was tried on July 17, 1978. Plaintiff testified that defendant owed $1,490 in back rent. Defendant presented evidence pertinent to his habitability defense. It is undisputed that at the time of trial there was $1,800 in defendant's savings account, or $300 more than needed to pay the rent claimed to be due and owing.
The trial judge found that plaintiff had not breached an implied warranty of habitability and therefore ordered no abatement. At the conclusion of his oral opinion the judge directed entry of judgment for possession in favor of plaintiff. This was immediately followed by defense counsel's statement that it should be clear for the record "that should the money that is due and owing as determined by you be paid before the warrant of removal issues, then the case is dismissed." The trial judge, without any objection from plaintiff's counsel, agreed, saying: "If the money is paid then the action is dismissed, absolutely." He stated that it was his understanding that the summary dispossess proceeding required dismissal if the rent is paid in full prior to the execution of the warrant of removal.
Two days after the trial the court clerk issued a warrant of removal but, as we have indicated, the warrant was void. The next day defendant paid, and plaintiff's attorney accepted, $1,500 covering the back rent and costs. The warrant of removal was served the following day.
Defendant immediately filed his application for an order to show cause for a permanent injunction against execution of the warrant of removal. The judge who heard the matter (not the trial judge) held that defendant's payment of the back rent
voided the judgment of possession and he consequently dismissed the action. Plaintiff filed a timely notice of appeal.
Resolution of the issue raised hinges upon the interpretation to be given §§ 55 and 57 of the summary dispossess procedure under the Landlord and Tenant Act, N.J.S.A. ...