Construction & Renting Corp. v. Stein

• Decision Date: 25 January 1950
• Docket Number: No. A--444,A--444
• Parties: CONSTRUCTION & RENTING CORPORATION v. STEIN.
• Court: New Jersey Superior Court — Appellate Division

Page 239

6 N.J.Super. 239

70 A.2d 877

CONSTRUCTION & RENTING CORPORATION v. STEIN.

No. A--444.

Superior Court of New Jersey Appellate Division.

Argued Jan. 3, 1950.

Decided Jan. 25, 1950.

Herman Shapiro, Paterson, argued the cause for the plaintiff-respondent (A. Leonard Bluestein, Paterson, attorney).

Hugh C. Spernow, Paterson, attorney for and of counsel with defendant-appellant, argued the cause.

Before Judges McGEEHAN, COLIE and EASTWOOD.

The opinion of the court was delivered by

EASTWOOD, J.A.D.

Defendant, Vadya Stein, appeals from a judgment entered by the Passaic County District Court against him and in favor of plaintiff, Construction and Renting Corporation, for one month's rent of an apartment, and from an adverse judgment on his counterclaim for damages for alleged unlawful eviction under prior dispossess proceedings between the parties.

The only question argued by defendant is that the trial court erroneously entered judgment on his counterclaim in favor of the plaintiff. Defendant, in his counterclaim, alleged that he suffered damages when he was unlawfully evicted by plaintiff 'by virtue of summary dispossess proceedings based upon facts set forth in the Affidavit of Dispossess which were untrue and caused said Vadya Stein to be evicted from said premises by virtue of an affidavit which was unlawful, in that, it did not set forth jurisdictional facts required in such affidavit, thereby constituting a trespass against the said Vadya Stein * * *.' Plaintiff's affidavit in the dispossess proceedings alleged:

'3. The said Vadya Stein convenanted in said lease that he would during the term of said lease and at his own cost and expense, keep the said premises in good repair as to the interior of the dwelling and properly maintain the same in accordance with the rules and regulations of the municipal, State and Federal Authorities.'

and that defendant had violated the covenant, rules and regulations. Under authority of the judgment entered in the dispossess proceedings, a warrant for possession was issued and defendant was evicted on October 7, 1948.

Defendant contends that his right of action under his counterclaim against the plaintiff is authorized by R.S. 2:32--273, N.J.S.A., which denies a tenant the right of appeal in dispossess proceedings, but 'the landlord shall remain liable in an action at law for an unlawful proceeding under sections 2:32--265 to 2:32--277 of this title.' Under the circumstances here, there can be no question as to defendant's right of action against plaintiff. The determination in the dispossess proceedings only affected the respective rights of the landlord and the tenant 'for that occasion' and nothing more. Either of them was privileged, in a subsequent proceeding, to deny or disprove the facts upon which such a judgment is based. McWilliams v. King and Phillips, 32 N.J.L. 21 (Sup.Ct.1866); Hopper and Broomhead ads. Chamberlain, 34 N.J.L. 220 (Sup.Ct.1870). Thus, the tenant might recover...