Beach Realty Co. v. City of Wildwood

• Decision Date: 04 February 1929
• Docket Number: No. 46.,46.
• Citation: 144 A. 720
• Parties: BEACH REALTY CO. v. CITY OF WILDWOOD.
• Court: New Jersey Supreme Court

144 A. 720

BEACH REALTY CO.

v. CITY OF WILDWOOD.

No. 46.

Court of Errors and Appeals of New Jersey.

Feb. 4, 1929.

Syllabus by the Court.

Appeal from Supreme Court.

Action by the Bench Realty Company against City of Wildwood. Judgment for plaintiff, and defendant appeals. Affirmed.

Jonathan Hand, of Wildwood, and C. L. Cole, of Atlantic City, for appellant.

Bourgeois & Coulomb, of Atlantic City, for respondent.

WALKER, Chancellor. This was an action of ejectment in the New Jersey Supreme Court, and was tried at the Cape May county circuit before Sooy, J., and a jury. At the conclusion of the whole case, counsel for plaintiff moved for the direction of a verdict in its favor: and counsel for defendant did the like. Thereupon the court stated there was no evidence to justify the jury in finding there was a dedication of the land in question, nor any that would justify a finding that there was a right in defendant or the public by prescription, and, plaintiff having proved right to possession by virtue of its title as well as by virtue of the expiration of the lease to defendant, and the question being devoid of facts which would require the case to be submitted to the jury, overruled the motion of defendant, and directed a verdict in favor of the plaintiff. To this the defendant prayed an exception, which was allowed. The jury then returned a verdict for the plaintiff and against the defendant by direction of the court, and thereupon judgment was entered that plaintiff "do recover of said defendant * * * possession of the premises mentioned and described in the complaint," etc. The plaintiff submits that the complaint was grounded on the written lease between the parties with expiration of the term as the basis of the action, produced the lease, and then proceeded to prove title as in the ordinary common-law action of ejectment.

The complaint averred that prior to January 1, 1920, it was the owner of the lands and premises therein described, and that on January 4, 1927, it entered into a lease with defendant, leasing unto it all those several parcels of land already mentioned; that the lease was for the term of one year and expired January 4, 1928; that defendant held over and remained in possession of the lands and premises against the will of the plaintiff, and kept plaintiff out of possession, depriving it of rents and profits thereon; that plaintiff's right to possession accrued January 5, 1928. The lease and also a resolution of the city of Wildwood, defendant, authorizing the execution of the lease, which was complied with by the proper officers, was in evidence. There was no count alleging unlawful entry upon the premises, but the court received evidence of title from the plaintiff over objection by defendant, and granted an exception thereon. Notwithstanding this, defendant tried the case of ownership on its merits, and this waived the objection.

The first contention made by the defendant on this appeal is that there was no demand for possession made by the plaintiff, which, it is claimed, was necessary if the relation of landlord and tenant existed; but in Den v. Adams, 12 N. J. Law, 99, it was held by the Supreme Court: "When a tenant whose term has expired by efflux of time, instead of quitting the premises as he ought to do, remains in possession, holding over, he is a wrongdoer, and may be treated as such by the owner, his landlord; and the landlord may immediately maintain an ejectment to recover the possession without giving a notice to quit." The lease expired January 4, 1928, and plaintiff brought its suit March 7, 1928, two months and two days after its right to possession accrued. At page 103, it was said: "It would be a perversion to suppose the commentator [Kent] meant that on a lease for a year, the landlord must enter or sue, at the instant of its expiration; that one noment's possession in the new year would secure the tenant for that year; or that the landlord might not abstain, for a day, a month, or even a longer period. How otherwise could there be an estate at sufferance?" In this case the defendant did not continue in possession by any new agreement with the plaintiff, nor did the plaintiff do any act whatever from which a renewal of the lease or consent to the tenant's holding over could be inferred; the tenant was therefore no more than a tenant at sufferance, and not entitled to notice to quit. And in Leonard v. Spicer Mfg. Co., 103 N. J. Law, 391, 139 A. 15, 55 A. L. R. 284, this court cited with approval the case of Den v. Adams. Two months and two days after expiration of lease before ejectment brought is not of itself evidence of consent by owner to former tenant holding over.

It is next contended that the relation of landlord and tenant did not exist because the city was without power to enter into the lease. There was testimony showing that the lease covered the lands described in the complaint, but it is stated that the commissioners were not justified in passing the resolution authorizing the execution of the lease, and, representing the public, the city was not bound by this act, which was ultra vires. The answer is twofold: First, because if the lease were void the defendant never was tenant at all, but a mere trespasser; and, second, the city was authorized to enter into the lease by P. L. 1917, p. 455, art. 37, § 1 of the Home Rule act, which provides: "Where, by any provision of this act, a municipality is empowered to acquire lands or to erect or construct any building for any purpose, such municipality shall have power to lease or hire any lands or building or buildings suitable for such purpose." And at page 365, by article 18, § 1: "Every municipality shall have power to hire, purchase, erect or otherwise acquire, and maintain, such building or buildings as may be necessary...