Albey v. Weingart

• Decision Date: 13 June 1904
• Citation: 71 N.J.L. 92,58 A. 87
• Parties: ALBEY v. WEINGART.
• Court: New Jersey Supreme Court

58 A. 87

71 N.J.L. 92

ALBEY

v. WEINGART.

Supreme Court of New Jersey.

June 13, 1904.

(Syllabus by the Court.)

Appeal from District Court.

Action by George A. Albey against Andrew M. Weingart. Judgment for plaintiff, and defendant brings error. Reversed.

Argued February term, 1904, before VAN SYCKEL and FORT, JJ.

George S. Silzer, for plaintiff.

T. B. Booraem, for defendant.

VAN SYCKEL, J. On the 21st day of October, 1903, Albey, the plaintiff, rented of Weingart, the defendant, certain rooms in a dwelling house in New Brunswick, possession of which was to be given on the 1st day of November, 1903. No term was agreed upon, but rent was to be paid monthly at the rate of $30 per month. The letting was by parol, no money having been paid by the plaintiff. On the 26th day of October, 1903, the defendant notified the plaintiff that he had rented the rooms to another person, and that plaintiff could not have them. In the meantime the plaintiff, with a family consisting of himself, his wife, and two children, gave up the possession of a house he had been occupying in Orange, N. J. After service of the said notice, the plaintiff endeavored to obtain another house in New Brunswick, but failed to secure one suitable to his circumstances. He moved his furniture and family to New Brunswick, and brought suit in the district court to recover damages for the loss he sustained by the refusal of the defendant to give him possession. It does not appear when the suit was instituted, but on the 25th day of January, 1904, he recovered a judgment against the plaintiff for damages which he claimed had accrued and which would thereafter accrue up to April 1, 1904.

Where no time is mentioned in a lease, and no annual rent is reserved, the time of the tenure under the agreement will be controlled by the interval of payments; monthly or weekly payments implying monthly or weekly tenancies. Stcffens v. Earl, 40 N. J. Law, 128, 29 Am. Rep. 214. Since this decision was rendered, the act of 1888 (Gen. St. p. 1924, § 37) was passed, providing "that in any letting where no term is agreed upon, and the rent is payable monthly so long as the tenant pays the rent as agreed, it shall be unlawful for the landlord to dispossess the tenant before the first day of April, succeeding the commencement of such letting, without giving the tenant three months' notice in writing to quit." By force of this statute, the plaintiff was entitled to a term running to April 1, 1904. If he paid his rent monthly, unless the landlord gave him three months' notice in writing to terminate it at the end of any month prior to April 1, 1904. It does not appear in the case that such notice was given by the defendant. The parol lease was valid, although the right to possession was to accrue on the 1st day of November, 1903. In Birckbead v. Cummings, 33 N. J. Law, 44, it was held that under such a lease the landlord could recover the rent reserved.

The defendant at the close of plaintiff...