Peters v. Kelly

• Decision Date: 12 January 1968
• Docket Number: No. A--1051,A--1051
• Citation: 98 N.J.Super. 441,237 A.2d 635
• Parties: James C. PETERS and Anthony Palumbo, Plaintiffs-Respondents, v. Nezzie KELLY, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 441

98 N.J.Super. 441

237 A.2d 635

James C. PETERS and Anthony Palumbo, Plaintiffs-Respondents, v. Nezzie KELLY, Defendant-Appellant.

No. A--1051.

Superior Court of New Jersey, Appellate Division.

Argued Dec. 4, 1967.

Decided Jan. 12, 1968.

Joseph Barry and Harris David, Legal Services Project, Newark, for appellant.

Walter R. Cohn, Newark, for respondents (Cohn & Turk, Newark, attorneys).

Before Judges SULLIVAN, FOLEY and LEONARD.

PER CURIAM.

Defendant appeals from a summary dispossess order granted pursuant to N.J.S. 2A:18--53(b) N.J.S.A., by the Essex County District Court. Execution of the writ of eviction was stayed pending the outcome of the appeal.

Review of summary actions for possession is statutorily limited to appeals grounded on the county district court's lack of jurisdiction. N.J.S. 2A:18--59, N.J.S.A. Jurisdiction is conferred by N.J.S. 2A:18--53, N.J.S.A., which in relevant part states:

'Any lessee or tenant at will or at sufferance, or for a part of a year, or for 1 or more years, of any houses, buildings, lands or tenements, and the assigns, undertenants or legal representatives of such tenant or lessee, 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.'

In February 1967 defendant leased a five-room apartment on a month-to-month tenancy at 72 Second Street, Newark, New Jersey. Rent was fixed at $100 a month to be paid in advance. Since then defendant has resided in the apartment with her four children and one grandchild. When the dispossess action was brought defendant's rent was $200 in arrears for the months of April and May 1967.

The trial court found the tenant in default of rent for the months of April and May 1967. The tenant sought to offer the uninhabitable condition of the building in defense of nonpayment and the landlord's right to relief. The court refused to admit testimony regarding the condition of the premises as a defense to the landlord's suit for possession and held that since two months' rent was unpaid the landlord, as a matter of law, was entitled to immediate possession. Current possession pending appeal is by court order, which also compels the payment of rent.

On appeal defendant and an investigator for the Newark Legal Services Project aver in affidavits that the apartment is roach infested, with 'off and on' heating and a 'poor hot water' situation, all causing illness to members of defendant's family. The affidavits also state that there are no locks on the doors or lights in the halls. A rotten stench emanating from the cellar was said to permeate...