Sentliffer v. Jacobs

• Decision Date: 09 May 1913
• Parties: SENTLIFFER et al. v. JACOBS.
• Court: New Jersey Supreme Court

86 A. 929

84 N.J.L. 128

SENTLIFFER et al.

v. JACOBS.

Supreme Court of New Jersey.

May 9, 1913.

(Syllabus by the Court.)

Appeal from District Court of City of Newark.

Action by Morris Sentliffer and others against Norman J. Jacobs. Judgment for defendant, and plaintiffs appeal. Reversed, and judgment rendered for plaintiffs.

Argued November term, 1912, before TRENCHARD, PARKER, and MINTURN, JJ.

Samuel Kalisch, Jr., of Newark, for appellants.

Jacob L. Newman, of Newark, for appellee.

PARKER, J. This appeal was ordered to be dismissed for failure of the appellant to comply with rule 90 of this court, adopted June 4. 1907, providing that: "In all appeals taken from Judgments rendered in district courts the appellant shall, within ten days from the expiration of the time limited by the statute for the giving of his notice of appeal, file with the clerk of the Supreme Court a brief specification of the determination or directions of the district court with respect to which he is dissatisfied in point of law, a copy of which shall, upon the argument of the appeal, be furnished to the court with the state of the case and the copy of the Judgment record, and the appeal shall be heard and determined solely upon the points of law so specified."

Subsequently, on application made on behalf of appellant and for special reasons deemed satisfactory by the court after argument, the appellant was permitted to file out of time the required specification, and the appeal was thereupon reinstated. We have deemed it proper, as an intimation to the bar, to quote and comment on the rule, which does no more than require what has always been required by way of assignment of errors in cases removed by writ of error; reasons in those reviewed by certiorari; and what correspond to "grounds of appeal" in appeals under the Practice Act of 1912. By whatever name called,, it is in all these proceedings a statement apprising the appellee and the court what errors are claimed to have taken place below, to the injury of appellant, and the rule is universal that the appellant, plaintiff in error, or prosecutor in certiorari, as the case may be, is not entitled to a consideration by the court of any ground of error not so specified, nor of anything specified that is not matter of law. The cases are collected in 1 N. J. Digest, "Appeal & Error," §§ 151, 265 et seq. If the Judgment cannot be reversed on any ground specified, it will be affirmed. Champlin v. Barthold, 82 N. J. Law, 13, 81 Atl. 490.

If there be no specification at all, the practice has been to dismiss the appeal as for a default in pleading. This action has been taken probably several times at every term of this court since the rule was adopted, but it has not hitherto seemed necessary to have these dismissals (on a pure question of procedure) reported. Proper practice requires a uniform enforcement of the rule.

Coming now to the merits of the appeal: The suit was in replevin to recover possession of goods of plaintiffs seized under a distress warrant made by defendant. The point in dispute is whether plaintiffs were tenants to defendant at the time of the distress. If so, the money that plaintiffs owed defendant (as the court could find under the evidence) was unpaid rent, the distress was lawful, and the judgment for defendant was correct. The controversy turns on the existence or nonexistence of the relation of landlord and tenant.

The evidence shows that about November 10, 1911, one Crossley as attorney in fact rented a store property to the parties to this suit by a written lease, describing himself as party of the first part, and Norman J. Jacobs (the defendant) and Morris Sentliffer & Co. (the plaintiffs), party of the second part, for an indefinite term, rent payable on the 15th of each month, and fixed at $625 a month. The arrangement between the Sentliffers and Jacobs was that Jacobs should occupy exclusively a specified part of the demised premises and (as between them) be responsible for $225 of the rent, and the Sentliffers should occupy exclusively the remainder of the premises and be responsible (as between them and Jacobs) for the remaining $400 of the rent. In January, 1912, the landlord reduced the rent to $500 a month, of which Jacobs contributed one-third and the Sentliffers two-thirds. The landlord refused from the beginning to deal with the parties separately as to their shares of the rent, so at first Sentliffer & Co. paid it all and Jacobs reimbursed them for his share; then after the reduction Jacobs paid it all and the Sentliffers reimbursed him for their share, until in April the Sentliffers defaulted, and Jacobs thereupon distrained on the property described in the writ of replevin.

Under the original arrangement, and until the January reduction, it seems plain that the parties were tenants in common of an estate for years. At common law it would have been a joint tenancy, whether the estate were for years, or of freehold, unless expressly specified as a tenancy in common. 2 Blk. 179. Our statute of 1812 reversed this rule and provided that "no estate" should be considered an estate in joint tenancy unless it were set forth in the grant or devise creating such estate that a joint tenancy was intended. R. S. 650; Rev. 167; G. S. 1880. This act, being classified by compilers under the title "Conveyances," was re-enacted in the revised Conveyance Act of 1898 as section 15 (P. L. p. 1898; C. S. 1538). Whether ...