Baum v. Tazwell

• Citation: 61 A.2d 12
• Parties: BAUM et al. v. TAZWELL et al.
• Decision Date: 12 August 1948
• Court: New Jersey Circuit Court

61 A.2d 12

BAUM et al.

v.TAZWELL et al.

Circuit Court of New Jersey, Essex County.

Aug. 12, 1948.

Ejectment action by Herman Z. Baum and Ruth Silver against Charles A. Tazwell and others. On plaintiffs' motion to strike out the answer.

Motion denied.

Philip Mandelbaum and David Weinick, both of Newark, for plaintiffs.

Abram A. Golden, of Newark, for defendants.

JOSEPH L. SMITH, Judge.

The plaintiffs herein have instituted an ejectment action seeking possession of the entire house known as No. 13 Spring Street in the City of Newark. The complaint is in the statutory form and alleges that the plaintiffs' right of possession accrued on June 1, 1948. The defendants have filed an answer containing a general denial and four separate defenses. The first separate defense alleges that the defendants are sub-tenants of the tenant, George Teamer, who held a month-to-month tenancy on the property in question. The said George Teamer died on the 24th day of May, 1948. The second separate defense alleges that these defendants are entitled to the protection afforded to tenants under the Housing and Rent Control Act of 1948, 50 U.S.C.A.Appendix, s 1881 et seq. The third separate defense challenges the jurisdiction of the court and the fourth separate defense challenges the constitutionality of R.S. 2:51-25, N.J.S.A.

The plaintiffs move to strike the answer as sham in part and insufficient in law in part. The affidavit relied on by the plaintiffs admits that George Teamer was a month-to-month tenant but states that the said George Teamer on or about May 10th, 1948 gave written notice of the termination of his tenancy on or before May 31, 1948. A copy of the notice is attached to the affidavit and the affidavit further says that the said notice was accepted by the plaintiffs. The affidavit further sets forth the death of George Teamer on May 24, 1948, and says that these defendants occupy the premises without the consent or permission of the plaintiffs and that they are trespassers, in that at no time was there any relationship of landlord and tenant between the plaintiffs and defendants.

The answering affidavit made by one of the defendants admits that the defendants are in possession of the premises. It states that the defendants were subtenants of George Teamer during his lifetime. The Court desires to point out that this affidavit is replete with hearsay and contains conclusions of law and irrelevant matter all of which the Court cannot take into consideration. Kelly v. Weiner, Sup., June 12, 1923, 1 N.J.Misc. 338 (not reported in State Reports); Beugless v. Thomas, Sup. Court, November 16, 1923, 1 N.J.Misc. 581 (not reported in State Reports).

The general rule of law is that the death of a party does not terminate a lease. A statement of the rule is contained in 51 C.J.S., Landlord and Tenant, s 92, page 659 as follows: ‘In the absence of a covenant otherwise providing, as a general rule a lease is not terminated by the death of the lessor or the lessee.’ That this rule prevails in this state is clear. In Levigton v. Tuly, Ch., January 25, 1940, 126 N.J.Eq. 552, 10 A.2d 641, Vice Chancellor Bigelow, 126 N.J.Eq. at page 553, 10 A.2d 642, said: ‘A tenancy from month to month is not terminated by the death of the tenant but his interest therein passes to his executor or administrator.’ This rule was also stated in Dorfman v. Barnett, Circuit Court, July 11, 1946, 48 A.2d 217, 24 N.J.Misc. 212, (not reported in State Reports) but was held inapplicable because the written contract evinced the intention to limit the occupancy to the lessee. In that case Justice Burling, then a Circuit Court Judge, 48 A.2d at page 218, 24 N.J.Misc. at page 218, said: ‘The fact of the lessee's death has created the issue in this controversy and requires the construction of the lease. Although a tenancy from month to month is not terminated by the death of the tenant and his interest passes to his administrator, Levigton v. Tuly, Ch. 1940, 126 N.J.Eq. 552, 10 A.2d 641, still the contract of the parties makes this rule inapplicable. In the written lease and contract of the parties emphasis was laid upon the character of the occupancy. From the standpoint of the landlord, a meticulous evaluation of the lessee was carefully exhibited in the lease. Throughout the entire contract is evinced the intention to limit the occupancy to the lessee.’

Likewise distinguishable are the cases of Brigham v. Kidder, Err. & App., November 19, 1923, 99 N.J.L. 79, 122 A. 740, and Cardeville v. Robins, Circuit Court, February 4, 1932, 10 N.J.Misc. 349, 159 A. 614 (not reported in State Reports). In the former it was held that the lease was incident to the deceased's law business and entirely personal, hence it perished upon the death of the tenant. Chancellor Walker, 99 N.J.L. at page 80, 122 A. 740, said: ‘The contract did not survive to his personal representative, as he could not practice law in the deceased's place. * * * This case is controlled by our decision last term in Brauer v. Hyman, 98 N.J.L. 743, 121 A. 667, wherein we held that there was an implied covenant in a contract to the effect that if performance became impossible by reason of the perishing of the business itself, without fault of the party sought to be charged, no recovery could be had under it.’ In the latter case the lease fell upon the death of the lessor, a paralytic, where part of the rent was a duty to care for the lessor by the lessee.

It is clear in the instant case that the death of the tenant without more did not operate to terminate the month to month tenancy. It is also the well settled law in this state that assignment and subletting are naturally incident to a leasehold estate, and are not to be restricted unless by express stipulation to that effect. Farmer v. Davies, Err. & App., March 6, 1922, 97 N.J.L. 309, 116 A. 706, Simpson v. Moorhead, Ch. February 11, 1904, 65 N.J.Eq. 623, 56 A. 887, Braunstein v. McGrory Corp., Err. & App. March 6, 1922, 93 N.J.Eq. 419, 116 A. 707, 23 A.L.R. 133, Field v. Mills, Sup. Feb. 1869, 33 N.J.L. 254. A sub-letting creates the relationship of landlord and tenant between the tenant and the sub-tenant but there is no privity of contract between a landlord and a sub-tenant. Anything which defeats the tenants' estate will destroy the subtenants' estate. Cifelli v. Santamaria, Sup. Feb. 21, 1910, 79 N.J.L. 354, 356, 75 A. 434; D'Agostino v. Sheppard, Err. & App. May 21, 1925, 102 N.J.L. 154, 130 A. 520. However, this Court must take judicial notice of the provisions of the Federal Housing and Rent Control Act of 1948. In view of this Act the question arises as to the right of sub-tenants to remain in possession even in the event that the leasehold of the sub-lessor has been terminated. This Court has not found any reported cases wherein the above question has been decided in New Jersey. A partial discussion of the question is contained in the case of Shaw v. Creedon, Ch. July 21, 1943, 133 N.J.Eq. 397, 32 A.2d 721, wherein Vice Chancellor Woodruff, 133 N.J.Eq. at page 400, 32 A.2d 723, said: ‘At common law a surrender of his term by a lessee and its acceptance by the lessor merged the lesser term into the greater.’ So, it was held that, while a sub-tenant was not deprived of his right to use the property demised to him, neither the lessor nor the lessee could maintain an action against him for rent. Webb v. Russell, 3 T.R. 393, 100 Eng. Report 639. In McDonald v. May, 96 Mo.App. 236, 69 S.W. 1059, 1061, the Court said: ‘The surrender of the main term of a leasehold estate totally extinguishes it, and with it any subterms, or, rather, would extinguish any subterm as a necessary result of the extinction of the main term, but for another rule of law which has been raised for the protection of undertenants, to wit, that their rights will not be destroyed or impaired by a surrender of the main lease; and yet the surrenderee may not sue the undertenant for rent or on any other covenant. This rule is both ancient and technical, but has been laid down by all text writers and followed in all old judgments on the subject.’ The reason assigned for the latter rule protecting the sub-tenant is that by the sub-lease the sublessee acquires an estate in the land which cannot be defeated by any act...