Bernstein v. Demmert

• Decision Date: 13 November 1905
• Citation: 73 N.J.L. 118,62 A. 187
• Parties: BERNSTEIN et al. v. DEMMERT.
• Court: New Jersey Supreme Court

62 A. 187

73 N.J.L. 118

BERNSTEIN et al.

v. DEMMERT.

Supreme Court of New Jersey.

Nov. 13, 1905.

(Syllabus by the Court.)

Certiorari to District Court of Jersey City.

Action by Joseph E. Bernstein and others against Ferdinand Demmert. Judgment for plaintiffs, and defendant brings certiorari. Reversed.

Argued June term, 1905, before GARRISON and GARRETSON, JJ.

Walter L. McDermott, for the prosecutor. John L. Keller and Peter H. James, for defendants.

GARRISON, J. This writ of certiorari brings up a landlord and tenant proceeding brought to recover possession of leased premises upon the ground that the tenancy had been terminated by a legal notice. The notice that had been given was a one month's notice, and the only question is whether such notice was sufficient. The facts to be dealt with are stated in the landlord's affidavit as follows: The prosecutor took possession of the premises under an agreement made with Augustus H. Vanderpoel, acting as committee of the estate of one Henry Long. This agreement, which was a lease for the term of five years from May 1, 1903, at a yearly rental of $1,800, payable in equal monthly payments of $150 in advance, was immediately recorded. The said Henry Long had a life estate only, and on November 16, 1903, died, whereby the title to the leased property vested in certain remaindermen, who, on the 28th day of November, 1904, conveyed the premises to the defendants in certiorari, by whom landlord and tenant proceedings to dispossess the prosecutor were instituted by a notice dated and served on December 30, 1904, requiring possession to be delivered to them on the 1st day of February, 1905. The affidavit further states that after the death of the life tenant the prosecutor continued the payments of $150 per month without having made any new agreement touching the letting of the premises, and that after the defendants in certiorari purchased the property the prosecutor continued to make the same monthly payments to them without any new agreement.

Upon proof of these facts, without material modification, the district court adjudged that the defendants in certiorari were entitled to possession, thereby deciding that a month's notice was sufficient to terminate the tenancy, and hence necessarily adjudging that the prosecutor was a tenant from month to month. I am unable to concur in this result or to find any support for it either in the affidavit of the landlord or in the facts certified by the district court. I...