Mahnken v. Meltz

• Decision Date: 06 March 1922
• Citation: Mahnken v. Meltz, 97 N.J.L. 159, 116 A. 794 (N.J. 1922)
• Docket Number: 12
• Court: New Jersey Supreme Court
• Parties: ALFRED MAHNKEN, APPELLANT, v. MORRIS MELTZ ET AL., RESPONDENTS

116 A. 794

MAHNKEN

v. MELTZ et al.

No. 12.

Court of Errors and Appeals of New Jersey.

March 6, 1922.

Appeal from Supreme Court.

Action by Morris Meltz and others against Alfred Mahnken.From a judgment of the Supreme Court affirming a judgment dispossessing defendant of certain premises, defendant appeals.Affirmed.

G. Earl Brugler, of Hoboken, for appellant.

Michael J. Quigley and Hugo Woerner, both of Newark, for respondents.

WALKER, Ch.This is an action for the possession of demised premises commenced in the district court of East Orange and resulted in the dispossession of the defendant(prosecutor-appellant) under a warrant therefor issued upon the judgment of that court.The appellant applied for and ob- tained a certiorari which was argued before the Chief Justice, sitting alone under the statute.He affirmed the judgment of the district court, and the prosecutor has appealed to this court.He files nine grounds of appeal.The first invokes the jurisdiction of this court, and the others should not have been filed.The grounds stated in them were arguable because residing in the record brought up by the appeal.SeeDiamond Mills Paper Co. v. Leonard Hygiene Ice Co.(N. J.)113 Atl, 139, and cases cited.

The first point made for the prosecutor-appellant is that the respondent Meltz had no authority to make the affidavit which was the basis of the dispossessory proceedings.The owner of the property was Morris Daniel, but Meltz was his agent.He swears that be was the authorized agent of Daniel for the rental of the property, etc.His authority to make the affidavit was derived from the supplement to the district court act, approved June 2, 1905, P. L. 493, Comp. Stat. p. 1991, § 117a.That act provides that where any lands are or shall be leased by any agent of the owner, in the name of such agent, either individually or as agent, such owner or the assignee or grantee of such owner shall have the same right to terminate such tenancy as was or shall be possessed by such agent, and it shall be lawful for the owner or his agent thereunto authorized to institute proceedings, etc.

The affidavit upon which the summons issued stated facts necessary to give the district court jurisdiction to entertain the proceedings.

The next point is that the act mentioned is unconstitutional in that its title is defective.Defendants-respondents assert in their brief that this point was not raised or argued in the court below and therefore cannot now be urged.In the reply brief it is stated for appellant that the constitutional question was fully raised by elaborating objections to the affidavit and asserting the invalidity of the entire proceedings, and that these questions were raised on the removal of the case to this court.An examination of the nine reasons filed in the Supreme Court fails to disclose or even suggest that the act under which the proceedings were brought is unconstitutional.Where the Supreme Court sits as a reviewing tribunal, as it did in this case, questions not argued there will ordinarily not be noticed here, but may be if they involve jurisdiction or public policy.SeeState v. Belkota(N. J.)113 Atl. 142;State v. Snell(N. J.)114 Atl. 416.But, as above remarked, the jurisdictional question of defective title of the act under which these proceedings were instituted was not even raised in the court of first instance, and,...