Marjer v. Layfmen.

• Decision Date: 13 May 1947
• Citation: 53 A.2d 187
• Parties: MARJER v. LAYFMEN.
• Court: New Jersey Court of Chancery

53 A.2d 187

MARJER

v.LAYFMEN.

Court of Chancery of New Jersey.

May 13, 1947.

Suit by Molly Marjer against Anna Layfmen to require the defendant to specifically perform an option provision contained in a lease, wherein preliminary relief was sought against a threatened suit by the defendant for possession of the premises.

Restraint pendente lite granted.

Syllabus by the Court

.

1. A lessor's covenant or agreement to renew a lease extends a privilege to the tenant, but is, nevertheless, only an executory contract, and, until the tenant has exercised his privilege by way of some affirmative act, the lessor cannot be held for the additional term.

2. When notice by a lessee of his exercise of a right or privilege to renew given by the terms of a lease is required, the notice must indicate his unconditional and unqualified determination to exercise his option; and if the provision of the lease requiring notice specifies the kind of notice to be given, the terms of the lease must be complied with by the tenant in order to bind the landlord, and the notice must, ordinarily, be given in the manner provided.

3. In the absence of a specific provision in the lease, any form of notice which definitely imparts to the landlord the information that the tenant has availed himself of an option of renewal given by the lease, or shows a clear intention on the part of the lessee to exercise his option on the precise terms stated therein, is sufficient. Generally, unless the lease stipulates otherwise, the notice does not have to be a formal written one.

4. Equity will relieve against the consequences of a failure to give a notice at the time or in the form and manner required as a condition precedent to the renewal of the lease, when such failure results from accident, fraud, surprise, or mistake; there are other special circumstances which warrant a court of equity in granting relief against the consequences of the lessee's failure to notify the lessor within the stipulated time or in the specific form or manner prescribed.

5. Equity may grant relief from a mere inadvertent neglect to give notice of a desire to renew a lease where the delay has been slight, and refusal to grant relief will result in such hardship to the tenant as to make it unconscionable to enforce literally the penalty in the lease.

6. The general rule is that when the material facts relied upon the support an application for preliminary injunction are denied under oath, the application should be denied; but there are well-recognized exceptions to the general rule. One exception is that where the subject-matter of the suit-in the instant case, a lessee's possession of the demised premises-is threatened with loss or impairment, restraint pendente lite will be imposed to preserve the subject-matter, upon such terms as the circumstances of the individual case require.

Albert N. Shahadi, for whom appeared Harry Miller, both of Atlantic City, for complainant.

Irving I. Jacobs, of Atlantic City, for defendant.

WOODRUFF, Vice Chancellor.

Complainant has filed a verified bill of complaint. Therein she prays a decree requiring defendant to specifically perform an option provision contained in a lease made by her to the complainant for certain premises in the City of Atlantic City. Preliminary relief is sought at this time against a threatened suit for possession.

The lease was dated June 24, 1946. It provided, inter alia:

‘And the said Lessor does hereby grant and give the said tenant the option and privilege of renewing the term of the within lease for an additional period of four (4) years commencing March 31, 1947 at 12:00 o'clock noon and ending March 31, 1951 at 12:00 o'clock noon subject to the same terms and provisions in this lease contained, and at the following rents, to wit, for the two stores the sum of Eight Thousand Four Hundred ($8,400.00) Dollars payable $175.00 on the first day of each and every month of said term commencing with April 1, 1947 and for the two apartments the further sum of Three Thousand Six Hundred ($3,600.00) Dollars payable $75.00 on the first day of each and every month of said term commencing with April 1, 1947.

‘It being expressly understood and agreed that the said tenant in taking up and exercising said option must take the entire building at the said combined rents and provided that the said tenant shall on or before April 1, 1947 deposit with the lessor the sum of $3000.00 in cash, on account of last year's rent of said term, and further provided that the said tenant shall in writing prior to February 1, 1947, addressed to the lessor and served upon her personally or by registered mail which shall be postmarked prior to February 1, 1947, irrevocably indicate the tenant's taking up and exercising the said option, and shall be followed by the deposit with the said lessor of said sum of $3000.00 on or before April 1, 1947.’

It is asserted in the bill that on January 30, 1947, and before the expiration of the term of the initial lease, the complainant duly exercised her privilege of extending the lease by mailing to the defendant, by registered mail, a letter stating that the complainant was taking up her option. The mailing of this letter within time and its receipt by the landlord is conceded. The notice was, however, unsigned. It was in this form:

‘2025 Wallace St.

‘Phila. 30, Pa.

‘Jan. 30, 1947

‘Mrs. Anna Layfman

‘c/o I. DeLeuge

‘311 Oriental Ave.

‘Atlantic City, N. J.

‘Dear Mrs. Layfman:

‘This is to advise that the undersigned is taking up the option of the (4) four additional years on premises 1001 Pacific Ave. and 34 & 36 So. Virginia Ave., Atlantic City, N. J. as provided for in lease dated June 24th, 1946 between the undersigned and Anna Layfman.

‘Yours very truly,

‘Copy sent to:

‘Irving I. Jacobs.’

Resisting the instant motion to restrain a proposed ejectment suit, the defendant filed an affidavit of Isaac Dluge which stated that the affiant was her son-in-law and the person who had actually transacted her business with respect to the properties and the lease in question. In the affidavit it was admitted that the defendant received the quoted notice in the early part of February, 1947, and that a copy was also received by Irving I. Jacobs, her attorney. It was further stated that Mr. Dluge, when the notice was received by the defendant, observed that it was unsigned, and that, in view thereof, the defendant, on his advice and that of her solicitor, took ‘the position that Mrs. Marjer has not complied with the terms and conditions of that part of the lease quoted in paragraph two of the bill of complaint, copy of which said lease is annexed to said bill, and has failed to properly exercise the option thereon contained.’ Mr. Dluge also declared in his affidavit that the defendant's solicitor had prepared a suit in ejectment in the Atlantic County Circuit Court, designed to oust the complainant from the leased premises.

The defendant's solicitor had advised the solicitor of the complainant of his intention to institute the ejectment suit. Thereupon, the bill in this cause was filed and an application was made for an order to show cause why restraint of the proposed action should not issue. It is that question which must be here determined.

The lessor's covenant or agreement to renew extends a privilege to the tenant, but is, nevertheless, only an executory contract, and, until the tenant has exercised his privilege by way of some affirmative act, the lessor cannot be held for the additional term. When notice by a lessee of his...