On appeal from Superior Court, Law Division, Special Civil Part, Morris County.
Antell, Dreier*fn1 and Skillman. The opinion of the court was delivered by Antell, P.J.A.D.
Plaintiff landlord appeals from an order dated June 26, 1992, entered by the Special Civil Part, vacating a default judgment of possession which had been entered on May 29, 1992, for nonpayment of rent. Plaintiff requested a warrant of removal on June 1, 1992. On June 17, 1992, defendant obtained an order to show cause returnable June 19, 1992, to stay execution of the warrant. Defendant failed to appear on the return date and the warrant was executed at 1:15 p.m. that day.
On June 22, 1992, defendant obtained a further order to show cause returnable June 26, 1992, requesting that the judgment of possession be vacated and that she be permitted re-entry and continued possession of the premises. On June 26, 1992, after a hearing, the court vacated the judgment upon payment of the full balance of rent. The court stated that because the suit had been brought for nonpayment of rent its action was authorized "in the interest of Justice" under R. 4:50. It is from this determination that plaintiff appeals.
Plaintiff argues that the court's statutory powers were limited to those specified in N.J.S.A. 2A:42-10.6, that is, to issuing a stay prior to the execution of a warrant, with the
proviso that such stay may not exceed six months. We agree and hold that once a judgment for possession has been entered for nonpayment of rent, it may not be defeated by the payment of overdue rent.
Under the circumstances, the court's authority was circumscribed by the following language of N.J.S.A. 2A:42-10.6:
Notwithstanding any other provisions of law, in any action brought by a landlord against a tenant to recover possession of premises or unit used for dwelling purposes, to which this act is applicable, whether by summary dispossess proceedings, civil action for the possession of land, or otherwise, the Judge of the court having jurisdiction shall use sound discretion in the issuance of a warrant or writ for removal or writ of possession, and if it shall appear that by the issuance of the warrant or writ the tenant will suffer hardship because of the unavailability of other dwelling accommodations the Judge may stay the issuance of the warrant or writ and cause the same to issue at such time as he shall deem proper under the circumstances, but in no case shall such Judge stay the issuance of any such warrant or writ for possession for a longer period than 6 months after the date of entry of the judgment of possession . . .
We first note that no evidence was presented that defendant would "suffer hardship because of the unavailability of other dwelling accommodations." Moreover, even if such evidence had been presented and accepted by the court, the court could not have granted any further relief beyond a stay of the warrant "for a longer period than six months after the date of entry of the judgment of possession." We further note that N.J.S.A. 2A:42-10.7 specifies that "[i]n no event shall any payment made by the tenant to the landlord for continued occupancy of any premises or unit, as provided in . . . [ N.J.S.A. 2A:42-10.6], be deemed to create a new tenancy."
The question of the court's power to stay indefinitely a judgment of possession over a landlord's objection, upon payment of rent, was considered in Housing Authority, Newark v. West, 69 N.J. 293, 354 A.2d 65 (1976). There, a county district court Judge ordered a warrant of removal stayed pending performance by the tenant of the court's order that she pay accumulated rent arrearages of $2,199, at the rate of $100 per month, together with current rent as it came due. The landlord's appeal was challenged by the tenant on the basis of
N.J.S.A. 2A:18-59, which provided that summary dispossess actions "shall not be appealable except on the ground of lack of jurisdiction." Thus, the question presented took the form of whether the county district court exceeded its jurisdiction in entering the order that it did. In approaching the question, the Supreme Court first noted as "unquestionable that the basic purpose of the summary proceedings was to permit prompt recovery of the premises by the landlord." Id. at 300, 354 A.2d 65. It concluded that there ...