Levigton v. Tuly

• Decision Date: 25 January 1940
• Citation: 10 A.2d 641,126 N.J.Eq. 552
• Parties: LEVIGTON v. TULY et al.
• Court: New Jersey Court of Chancery

10 A.2d 641

126 N.J.Eq. 552

LEVIGTON

v. TULY et al.

Court of Chancery of New Jersey.

Jan. 25, 1940.

Syllabus by the Court.

1. Statement in bill of complaint, that complainant "makes a part hereof by reference, each and every allegation in the annexed affidavits", is ineffective, and in determining whether bill states a cause of action, the affidavits must be disregarded.

2. Tenancy from month to month is not terminated by death of tenant but his interest passes to his executor or administrator.

3. After appointment and discharge of administrator pendente lite and grant of letters to general administrator, landlord may distrain for rent accrued in lifetime of deceased or during tenure of administrator pendente lite.

4. Application to have estate decreed insolvent does not invalidate distress theretofore made, and landlord is at liberty to pursue his distraint.

Suit by Esther V. Levigton, individually and as administratrix of the estate of Albert E. Levigton, deceased, against Desider Tuly and another, to enjoin the defendants from proceeding further with a distraint. On defendants' motion to strike the bill.

Bill dismissed.

Abram A. Golden, of Newark, for complainant.

Frank Benjamin, of Newark, for defendants.

BIGELOW, Vice Chancellor.

The bill of complaint of Esther V. Levigton, individually and as administratrix of the estate of Albert E. Levigton, deceased, shows:

Levigton, in his lifetime, was tenant from month to month of defendants' premises at 177 Ferry Street, Newark, where he conducted a retail optical store. After his death intestate, which occurred September 28, 1939, letters of administration pendente lite were issued October 16, 1939, to one Fred H. Roever, Jr., and the Orphans' Court ordered him to continue the business of the intestate. Accordingly, Mr. Roever entered into possession and carried on the business. Thereafter, on November 18, letters of general administration were granted complainant, who has since then continued the operation of the store.

On December 1, the defendants distrained upon the goods and chattels of the estate located in the premises for the sum of $420, namely, rent for the six months from April to September, which had become due prior to the death of Mr. Levigton, and for the month of November. The administrator pendente lite had paid the rent for the intervening month of October. After the distraint, complainant paid December rent.

The bill further shows that the estate is probably insolvent; that complainant is therefore not justified in paying the rent which was owed by decedent out of the general funds in her hands and that on the other hand, if defendants proceed to a sale under their distress and the business which is now conducted at the leased premises is thereby interrupted, the valuable good will of the business will be destroyed. The bill prays that the defendants be restrained from proceeding further with the distraint. Defendants move to strike the bill on the ground that it sets forth no equitable cause of action.

Annexed to the bill are several long affidavits which are the basis of an application for an interlocutory injunction. The bill itself contains this paragraph: "Complainant incorporates and makes a part hereof by reference each and every allegation contained in the annexed affidavits." This attempt to incorporate the affidavits in the bill is contrary to our system of pleading and especially Chancery rule 45, and is ineffective. In determining whether the bill states a cause of action, the affidavits must be disregarded.

Complainant, in support of the bill, contends that the distraint was unlawful, and that her remedy at law, replevin or action for damages is inadequate. Defendants challenge both branches of the argument.

A tenancy from month to month is not terminated by the death of the tenant but his interest therein passes to his executor or administrator. The requisite privity between the lessor and such personal representative exists and the goods in his hands remaining on the demised premises may be distrained for rent accrued either before or after the death of the tenant. Brown v. Howell, 66 N.J.L. 25, 48 A. 1020; Id., 68 N.J.L. 292, 53 A. 459. The appointment of the administrator pendente lite did not break the privity between the defendants and complainant. Such an administrator is an officer of the court appointed to conserve the estate in independent hands....