Marini v. Ireland

Citation265 A.2d 526,56 N.J. 130
Parties, 40 A.L.R.3d 1356 Joseph MARINI, Plaintiff-Respondent, v. Alice IRELAND, Defendant-Appellant.
Decision Date18 May 1970
CourtUnited States State Supreme Court (New Jersey)

Gordon V. Lewis for appellant (David H. Dugan, III, Newark, Director, Camden Regional Legal Services, Inc., attorney; Joseph V. Ippolito, and Kenneth Meiser, on the brief).

Bartholomew A. Sheehan, Jr., Cherry Hill, for respondent (Hyland, Davis & Reberkenny, Cherry Hill, attorneys).

Richard J. Pilch, Trenton, amicus curiae for the New Jersey State Office of Legal Services (James D. Coffee, Elizabeth, Director).

The opinion of the Court was delivered by


This matter concerns the appealability of County District Court landlord and tenant dispossess judgments; the scope of a landlord's duty to make repairs; and the right to offset the cost of such repairs against accruing rent on the failure of the landlord to make same, if found to be required.

On or about April 2, 1969, plaintiff, landlord, and defendant, tenant, entered into a one-year lease for an apartment located in a two-family duplex building at 503--B Rand Street, Camden, New Jersey. The annual rent of $1,140 was agreed to be paid in monthly installments of $95. The lease incorporated a covenant of quiet enjoyment but did not include a specific covenant for repairs.

On or about June 25, 1969, defendant alleges that she discovered that the toilet in the leased apartment was cracked and water was leaking onto the bathroom floor. She further alleges that repeated attempts to inform plaintiff of this condition were unsuccessful. On or about June 27, 1969, defendant hired one Karl T. Bittner, a registered plumber, to repair the toilet. Bittner repaired the toilet at a cost of $85.72, which the tenant paid.

On July 15, 1969, defendant mailed plaintiff a check for $9.28 together with the receipt for $85.72 in payment of the July rent. Plaintiff challenged the offsetting of the cost of the repair and demanded the outstanding $85.72.

When his demands were refused, plaintiff instituted a summary dispossess action for nonpayment of rent in the Camden County District Court pursuant to N.J.S.A. 2A:18--53(b) alleging the nonpayment of the July rent in the amount of $85.72 and August rent of $95. A hearing was had on August 15, 1969. Plaintiff argued that he was entitled to the $85.72 because he had no duty to make repairs and consequently, defendant's payment of the cost of repair could not be offset against rent.

The judge conceived the issue as entirely a legal one and determined that the facts which defendant alleged did not create a duty upon the landlord to make repairs. Thus, without trying out the issues tendered by defendant, he found a default in payment of rent of $85.72 (July) and $95 (August) plus costs and rendered a judgment for possession. Defendant appealed to the Appellate Division.

On August 29, 1969, a judge of the Appellate Division granted a temporary stay of the judgment for possession and the warrant of eviction. The Appellate Division granted a stay pending appeal on September 23, 1969 and ordered defendant to pay all the rents then due except the contested July rent. The Appellate Division also then denied plaintiff's cross-motion to dismiss the appeal. Before the Appellate Division heard argument, this Court certified the case on its own motion. R. 2:12--1.

The issues which evolve on this appeal are: Did defendant's claimed right to offset her cost of repairs against rent raise a 'jurisdictional' issue. If the answer to that query is in the affirmative, did the landlord have a duty to repair and may the issue of failure to comply with such duty be raised in a dispossess action. Also involved in the latter question is the right of the tenant to make repairs upon the landlord's failure to so do and the right to offset the cost thereof against rent.

N.J.S.A. 2A:18--53 provides in part:

'Any lessee or tenant * * * of any houses, buildings, lands or tenements, * * * may be removed from such premises by the county district court of the county within which such premises are situated, in an action in the following cases:

'b. Where such person shall hold over after a default in the payment of rent, pursuant to the agreement under which the premises are held.'

N.J.S.A. 2A:18--59 reads:

'Proceedings had by virtue of this article shall not be appealable except on the ground of lack of jurisdiction. The landlord, however, shall remain liable in a civil action for unlawful proceedings under this article.'

As noted, N.J.S.A. 2A:18--59 permits review of the County District Court's judgment only on the question of lack of jurisdiction. Plaintiff rationalizes that as defendant acknowledges that the rent asserted by plaintiff to be due for the month of July was not paid in full as provided in the lease, a defense grounded upon an allegation that the unpaid balance is not owing raises a 'meritorious' issue. He states that defendant's contest of the Amount due directs an attack upon the plaintiff's right to possession rather than an attack upon the jurisdictional basis of his action. Plaintiff argues that the admitted failure to pay In full is, in the language of the statute a 'default' and vests the County District Court with jurisdiction to order a removal of the tenant.

Defendant on the other hand, contends that the County District Court has jurisdiction in dispossess actions only in those factual complexes specified in N.J.S.A. 2A:18--53--here, for a 'default in the payment of rent.' the issue of the Amount of rent due, says defendant, raising as it does the issue of the default alleged by the complaint, is directed at the jurisdiction of the County District Court and a determination rejecting her defense of Non-default, in whole or part, is therefore appealable under N.J.S.A. 2A:18--59.

The County District Court in the present matter, is vested with jurisdiction as noted, only where there exists a rent default. The complaint must delineate specific allegations of fact giving rise to such a default.

While dealing with the following cases cited in connection with the foregoing, it must be remembered that originally an action for possession was commenced before a justice of the peace by filing an affidavit. Later the jurisdiction was transferred to the District Court, but the action continued to be commenced by the filing of an affidavit. In Earl v. Krug Baking Co., 22 N.J.Misc. 424 (Cir.Ct.1944), the court said in that connection at p. 425, 39 A.2d 784, at p. 785:

'Summary proceedings in the district court for the dispossession of tenants may be described as a statutory substitute for the common law action in ejectment, and although the proceedings are commenced by the filing of the jurisdiction affidavit, that affidavit is nonetheless a complaint in the ordinary acceptation of the term.'

Presently the affidavit has been superseded by a complaint. R. 6:3--1. What is said in the following cases concerning affidavits is equally applicable to presently employed complaints. As early as Fowler v. Roe, 25 N.J.L. 549 (Sup.Ct.1856), the court said, at p. 551:

'In this summary proceeding before a justice of the peace, to turn one man out of the possession of the premises he occupies, and put another in, the power is delegated by special statutory authority to a court having no jurisdiction to try the title to lands, and can only be exercised where all the prerequisites to its exercise prescribed by the statute appear to exist, and are shown to have been complied with.'

Fowler, Supra, also held at p. 550, that it must appear from the allegations of the affidavit:

'1. That the relation of landlord and tenant exists.

'2. That default has been made by the tenant in the payment of rent, according to the terms of the agreement or demise under which he holds.

'3. That there are no goods of the tenant on the premises out of which the rent due can be made by distress.

'4. That three days' notice in writing has been served by the person entitled to the rent, on the person owing the same, requiring payment or possession.'

And again in Schuyler v. Trefren, 26 N.J.L. 213 (Sup.Ct.1857), the court said:

'The proceeding is summary, and the jurisdiction is special, limited and statutory; and every essential to its proper exercise must appear to have been complied with.'

In Vineland Shopping Center, Inc. v. DeMarco, 35 N.J. 459 (1961), this Court said at p. 464, 173 A.2d 270, at p. 273 in reference to substantiating proof of the pleaded jurisdictional facts:

'The established principle is that the trial court had jurisdiction if there was evidence from which it could find a statutory basis for removal. If that test is met, the judgment must be affirmed even though it is otherwise infected with error.'

The jurisdictional issue, I.e., the statutory basis for removal, can be twice raised in a dispossess action. First, by motion directed at the complaint for failure to accurately allege the necessary facts with particularity. Second, on trial for failure to adduce adequate proof to corroborate the allegations of the complaint. If the complaint contains adequate factual allegations of default, the issue can be resolved only when proof has been adduced. Failure to furnish either such allegations in the complaint or proof on the trial is sufficient ground to warrant dismissal for lack of jurisdiction.

As noted in Vineland Shopping Center, Inc. v. DeMarco, Supra, at p. 464, 173 A.2d 270, our cases have hewed a line separating the 'jurisdictional' issue from the meritorious issue. Confusion arises from this jurisdictional-meritorious dichotomy by reason of the fact that the same proof is required and goes to the same crucial element in each, I.e., proof of the default in rent as alleged in the complaint. Whatever 'jurisdiction' means in other settings, here it uniquely connotes the existence of one of the factual situations delineated in N.J.S.A....

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