Schuman v. Zurawell

• Decision Date: 23 May 1946
• Citation: 47 A.2d 560
• Parties: SCHUMAN v. ZURAWELL et al.
• Court: New Jersey Circuit Court

47 A.2d 560

SCHUMAN

v.ZURAWELL et al.

Circuit Court of New Jersey, Essex County.

May 23, 1946.

Action in ejectment by Max Schuman against Steve Zurawell and another. On motion to strike defendants' answer on ground that it is sham or contrary to law.

Motion granted and summary judgment entered in favor of plaintiff.

Benjamin S. Appel, of Newark, for plaintiff.

Benjamin D. Braelow, of Newark, for defendants.

SMITH, Judge.

This is a motion to strike defendants' answer on the ground that it is sham or contrary to law.

It appears from the affidavits filed herein that the parties entered into a written contract on May 15, 1945, whereby the defendants were to perform the duties of superintendent and certain services as janitor in the apartment building of the plaintiff. The defendants were paid the sum of $100 per month and in addition were given the use of an apartment in the basement. The agreement provided that either of the parties could terminate the agreement upon giving two weeks' notice. Nothing was said with regard to the form of notice or the manner in which it was to be given.

Plaintiff alleges that written notice was given to the defendants by registered mail on February 11, 1946 as appears from the postal receipt which purports to be signed by Walter Zuramel, a son of the defendants, terminating the employment and demanding possession of the premises on March 15, 1946. The defendants did not surrender possession of the premises on March 15, 1946, despite the fact that plaintiff hired another superintendent who entered upon the duties of superintendent in charge of the premises wherein the defendants reside. The suit in ejectment was not brought until April 11, 1946. Plaintiff contends that a valid and sufficient notice was given to the defendant in accordance with the agreement of May 15, 1945, but it is questionable whether for the purposes of this motion any notice is necessary.

Mr. Justice Knapp speaking for our Supreme Court, in McQuade v. Emmons, 38 N.J.L. 397, held that where a party to the suit was employed at a salary of $25 per month and given the use of a house for himself and his family, the relation of master and servant arose and not that of landlord and tenant. In McQuade v. Emmons, supra, 38 N.J.L. at page 399, Mr. Justice Knapp said: ‘The occupation of the house by McQuade and his family was part of his compensation, for the performance of his engagement with the defendant; it does not show any demise of...