Joyce v. Bauman
| Decision Date | 27 September 1934 |
| Docket Number | No. 48.,48. |
| Parties | JOYCE v. BAUMAN. |
| Court | New Jersey Supreme Court |
Syllabus, by the Court.
1. A landlord is not bound to seek a tenant or rent the premises in order to minimize damages of a hold-over tenant who had become a tenant from year to year, and who moved out without giving the requisite notice of termination of the tenancy, where the original lease provided that the tenant would not assign, let, or sublet the premises without the landlord's written consent.
2. It is only when the minds of the parties to a lease concur in the common intent of relinquishing the relation of landlord and tenant, and execute that intent by acts tantamount to a stipulation to put an end thereto, that a surrender by act and operation of law arises.
3. The mere receipt of the key by the landlord shortly after the tenant had vacated, and the landlord's unsuccessful endeavor thereafter to rent the property, did not constitute an acceptance of surrender; it not appearing that the landlord made any use of the property for his own purposes inconsistent with the relationship of landlord and tenant.
Appeal from Supreme Court.
Suit by Thomas J. Joyce against Milton P. Bauman. From a summary judgment entered after the defense had been stricken out, defendant appeals.
Affirmed.
See, also, 165 A. 425.
Harry A. Stiles, of Jersey City, for appellant.
H. Warner Doremus, of Madison, for respondent.
This is defendant's appeal from a summary judgment entered after the defense had been stricken out.
The complaint set forth a written lease of premises from plaintiff to defendant for the term of one year from and after October 1, 1927, at a rental payable in equal monthly payments in advance on the first day of every month during the term; that the defendant, without any further oral or written lease between them, occupied the premises and paid the rent reserved in the lease, until and including September, 1930, and vacated and abandoned the premises on October 1, 1930; that the premises thereafter remained vacant; and that it was for subsequent unpaid rent that this suit was brought.
The answer of the defendant, apart from a general denial, set up two defenses as follows:
The plaintiff gave notice of a motion to strike out the answer and for summary judgment on the ground that the answer was frivolous and sham and set up no defense.
Both sides submitted affidavits, and Justice Bodine struck out the answer and defenses on the ground that they were sham or frivolous and ordered final judgment, and we think rightly.
The complaint and affidavits show, without dispute, that the tenant, by holding over and paying rent reserved in the lease, became a tenant from year to year, and that he did not give the requisite notice to terminate that tenancy. Heckel v. Griese, 171 A. 148, 12 N. J. Misc. 211.
The only questions argued relate to the propriety of the order in striking out the defenses.
The defense that the plaintiff refused to accept a proposed tenant and minimize damages, but permitted the...
To continue reading
Request your trial
-
Sommer v. Kridel
...Although they were of different minds as to the fairness of this result, both parts agreed that it was dictated by Joyce v. Bauman, 113 N.J.L. 438, 174 A. 693 (E. & A. 1934), a decision by the former Court of Errors and Appeals. We now reverse and hold that a landlord does have an obligatio......
-
Duncan Development Co. v. Duncan Hardware
...to relet the property may not, without more, constitute an acceptance of surrender. O'Neil v. Pearse, supra; Joyce v. Bauman, 113 N.J.L. 438, 174 A. 693 (E. & A.1934); Lorenz v. McCloskey, 135 A. 350, 5 N.J.Misc. 27 (Sup.Ct.1926); International Dye & Print Works, Inc. v. Fashion, etc., Co.,......
-
Eidelman v. Walker & Dunlop, Inc.
...of law under certain circumstances.' See Prevas v. Gottlieb, 229 Md. 188, 182 A.2d 489 (1962), there cited. In Joyce v. Bauman, 113 N.J.L. 438, 174 A. 693 (1934), the Court of Errors and Appeals of New Jersey 'It is only when the minds of the parties to a lease concur in the common intent o......
-
Riverview Realty Co. v. Perosio
...He has no duty to mitigate damages--a doctrine which is universally applicable to ordinary contract relationships. Joyce v. Bauman, 113 N.J.L. 438, 174 A. 693 (E. & A.1934); Muller v. Beck, 94 N.J.L. 311, 110 A. 831 (Sup.Ct.1920); Zucker v. Dehm, 128 N.J.L. 435, 26 A.2d 564 (Sup.Ct.1942); H......