Hoy v. Meyers.

• Decision Date: 25 January 1945
• Citation: 41 A.2d 14
• Parties: HOY v. MEYERS.
• Court: New Jersey County Court

41 A.2d 14

HOY

v.MEYERS.

Small Cause Court of Gloucester County, New Jersey.

Jan. 25, 1945.

Suit by Angeline R. Hoy against Lawrence R. Meyers for possession of premises 5 Focer Street, Glassboro.

Judgment for plaintiff.

George Purnell, of Curry & Purnell, all of Camden, for plaintiff.

Lynwood Lord, of Woodbury, for defendant.

THOMAS, Judge.

Plaintiff rented the premises in question, 5 Focer Street, Glassboro, to the defendant for the term of one year commencing on 1 July 1942. The lease was renewed in 1943 but not in 1944. On 28 October 1944 the plaintiff served notice upon the defendant to vacate on 1 December 1944. He did not do so; hence this suit.

The defendant produced evidence tending to show that the parties commenced negotiations for the sale of the property to the defendant. Mr. Cresse acted as intermediary but whether as agent for the plaintiff or defendant does not appear, nor did he testify in the matter altho there are several points which he might have cleared up.

The only witness in the case was the plaintiff, Mrs. Hoy, called by both plaintiff and defendant. She admits the negotiations toward the purchase of the property. A copy of a letter from her to Mr. Cresse instructing him to sell to Mr. Meyers provided settlement was before 1 February 1944 was produced by the defendant from the possession of the plaintiff. No settlement took place by that day, but later Mrs. Hoy sent to Mr. Cresse the deed to her to be given to the defendant, who is also an attorney, for the purpose of drawing a deed from the Hoys to him. This deed the defendant offered in evidence. The new deed was executed and sent to Mr. Cresse but recalled from him by Mrs. Hoy. No money has ever passed between the parties.

The defendant denies the jurisdiction of this court on the ground that a question of title to real estate is involved. He also set up at the trial that the defendant was entitled to 90 days' notice instead of 30, and that the notice was improperly given for a 30 day notice because given 33 days ahead of time instead of 30 days.

It is the law that the Small Cause Court possessed no power to determine title to real estate. R.S. 2:9-16, N.J.S.A. The exact wording of the statute is: ‘A justice of the peace holding a small cause court shall not have any jurisdiction over * * * any action wherein the title to real estate shall come in question.’

It also appears to be the law that the question of title to real estate must be a real one and not one raised merely for the purpose of defeating the jurisdiction of the justice of the peace. The legislature apparently had this in mind when they passed R.S. 2:33-39 and 40 and R.S. 2:58-25, N.J.S.A. These read as follows:

R.S. 2:33-39, N.J.S.A. ‘When, in an action in a small cause court, a defendant pleads as a justification title to real estate in himself or another under whom he acted or entered, he shall make such plea in writing and sign and deliver it to the justice, who shall countersign and deliver it to plaintiff, and thereupon dismiss the action.

‘If plaintiff shall, within sixty days thereafter, commence an action for the same cause in the supremen court or the circuit court of the proper county, defendant in such action shall be entitled to plead as a justification no other defense than the title to real estate in himself or another under whom he acted or entered; and, if plaintiff recovers any damages in the action in the supreme or circuit court, he shall recover his costs.’

R.S. 2:33-40, N.J.S.A. ‘The justice, to whom a plea of justification is tendered, shall before receiving the same, take from defendant a bond, with sufficient surety, in the penalty of one hundred dollars, executed to plaintiff in the action, and conditioned that, if plaintiff shall commence his action in the supreme or circuit court pursuant to section 2:33-39 of this title, defendant will appear thereto and pay such costs as may be awarded against him therein. If individual and not corporate surety is given, the surety shall consist of at least one person residing in the county and having sufficient freehold. If defendant does not give the bond herein required, the justice shall proceed in the action as if the plea had not been tendered.’

R.S. 2:58-25, N.J.S.A. ‘If upon the trial the plaintiff shall not be able to prove, by lease or other evidence, his right to the possession of the premises claimed by him without proving title to lands, tenements and hereditaments, the justice of the peace shall dismiss the action.’

The last quoted section appears in the Landlord and Tenant Act. The first two appear in the Small Cause Court Practice Act. Do these first two sections apply to an action for possession instituted under the Landlord and Tenant Act?

In this connection, it is interesting to note that both Small Cause Court Act and the Landlord and Tenant Act were passed in the same year and the same term of the legislature. It is also interesting that the District Court procedure in dispossession proceedings is part of the District Court Act.

The Small Cause Court Act and the Landlord and Tenant Act were passed at separate times for separate purposes. The procedure for dispossession in the Landlord and Tenant Act is complete in itself; it needs no help whatsoever from the procedure in the Small Cause Court Act. R.S. 2:58-25, N.J.S.A., can dispose of problems of title without the help of R.S. 2:33-39 & 40, N.J.S.A.

It is true that it has recently been held that in dispossession proceedings the defendant is entitled to a bill of particulars although such a bill is not mentioned in the landlord and tenant proceedings. Earl v. Krug Baking Co., N.J.Cir.Ct., Bergen County, 1944, 39 A.2d 784, 22 N.J.Misc. 424. But a bill of particulars is a common law right and is not provided for even in the Small Cause Court Act.

Consider also the wording of R.S. 2:33-39 & 40, N.J.S.A.: ‘When * * * a defendant pleads as justification title to real estate in himself or another under whom he acted or entered * * *.’ The words imply an action on the part of the defendant. Suppose in a trial in dispossession proceedings the defendant were to plead title in another under whom he held. In such circumstance, R.S. 2:33-39 & 40, N.J.S.A., would be inapplicable. The...