Kietrys v. Cregar.

• Decision Date: 30 August 1945
• Citation: 43 A.2d 810
• Parties: KIETRYS et al. v. CREGAR.
• Court: New Jersey Supreme Court

43 A.2d 810

KIETRYS et al.

v.CREGAR.

Supreme Court of New Jersey, Morris County.

Aug. 30, 1945.

Action by John F. Kietrys and another against George W. Gregar to recover damages occasioned by the defendant's refusal to vacate property which defendant had sold to plaintiffs within time provided in warranty in deed, wherein defendant counterclaimed. On plaintiffs' motion to strike the answers, separate defenses and counterclaim.

Motion granted as to counterclaim and otherwise denied.

Syllabus by the Court.

1. The provision in a contract of sale of real estate that the vendee may enter into and upon the said land and premises on the first day of November (the day fixed for the title closing) and from thence take the rents, issues and profits to his use, but provided the vendor may further ther occupy the premises for the month of November and pay the sum of $30 per month therefor, is a distinct, collateral and independent agreement creating the relation of landlord and tenant between them for the definite term of one month.

2. A judgment in dispossession entered in a District Court, so far as it affects the rights of either the landlord or the tenant is a determination for that occasion and nothing more. Either of them may in any subsequent legal proceeding deny or disapprove the facts upon which such decision is based. Such a judgment is not res judicata in a subsequent action for damages brought by the tenant against the landlord for an unlawful proceeding under the act.

Irving Youngelson, of Dover, for plaintiffs.

William T. Long, of Westfield, for defendant.

LEYDEN, Supreme Court Commissioner.

The motion is to strike the answer, separate defenses and counterclaim as sham and insufficient in law.

Cregar, the defendant, sold his house and lot to Kietrys, pursuant to the covenants and agreements contained in a contract of sale made the 25th day of September 1944. The contract provided that the defendant, in consideration of $8,500, would convey the premises to the plaintiff by deed of warranty, free of all encumbrances, on or before the first day of November 1944, and further that Kietrys ‘may enter into and upon the said land and premises on the first day of November, next ensuing the date hereof, and from thence take the rents, issues and profits to his or their use, but provided, the said George W. Cregar shall occupy the premises without charge until November 1st, 1944, and may further occupy the premises for the month of November following and pay the sum of $30. per month therefore.’

The deed was delivered and received on November 4, 1944, and Cregar continued in possession, paying the required $30 for the month of November. He did not vacate on December 1, 1944, but remained in possession after a demand and written notice for the delivery of possession was made upon him. Whereupon a suit for unlawful detainer was instituted against him in the First Judicial District Court of Morris County, and it resulted in a judgment of restitution with trebled costs. He vacated the premises on February 15, 1945, and paid the taxed costs on March 10, 1945.

The present action was instituted by Kietrys. He seeks, as damages, for ‘the deliberate and malicious conduct and wanton disregard of plaintiff's rights as aforesaid by defendant,’ the sums of money he alleges he was obliged to expend such as taxes, water and insurance for two and one-half months from December 1, 1944, to February 15, 1945; rent paid by him for other premises for same period; interest on $8,500 at six percent for two and one-half months, and legal fees. Apropos the measure of damage, see Wheaton v. Collins, 90 N.J.L. 29, 100 A. 157, affirmed 91 N.J.L. 236, 103 A. 201. Punitive damages are sought for ‘the deliberate, malicious and wanton conduct on the part of the defendant in refusing to vacate and surrender the lands and premises, pursuant to the terms of the said contract of sale, * * *.’

The answer denies the unlawful detainer and sets up four separate defenses. The first and second substantially allege a tenancy arising out of the contract of sale and a parol agreement entered into on or about December 7th whereby the plaintiff let and rented the premises to the defendant until the spring of 1945 at a monthly rental of $30 for December, $55 for January and monthly thereafter until such time as the defendant could obtain another place in which to live; that the plaintiff accepted the $30 as rent for the month of December but refused the sums offered as rent thereafter. The third defense is that the plaintiff's testimony was false and malicious and the proceedings for unlawful detainer were in violation of the statute. The fourth challenges the jurisdiction of the District Court over the subject matter of the action therein.

The counterclaim is difficult to interpret. It alleges the contract of sale and a parol agreement between the parties whereby the plaintiff rented to the defendant the described premises until the spring of 1945, and in consideration therefor the defendant agreed to pay $30 for the month of December 1944, and $55 per month thereafter until he should remove therefrom. It alleges the payment of $30 for the month of December to the plaintiff and the offer to pay...