Sommer v. Kridel

CourtNew Jersey Superior Court – Appellate Division
Writing for the CourtPER CURIAM
Citation74 N.J. 446,378 A.2d 774,153 N.J.Super. 1
Decision Date12 June 1975
PartiesAbraham SOMMER, Plaintiff-Appellant, v. James A. KRIDEL, Jr., Defendant-Respondent.

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153 N.J.Super. 1
378 A.2d 774
Abraham SOMMER, Plaintiff-Appellant,
v.
James A. KRIDEL, Jr., Defendant-Respondent.
Superior Court of New Jersey, Appellate Division.
Argued May 13, 1975.
Decided June 12, 1975.

[378 A.2d 775]

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James A. Major, Hackensack, for plaintiff-appellant (Major & Major, Hackensack, attorneys).

Steven J. Zaben, Englewood Cliffs, for defendant-respondent (Boratto, Pennachio & Silverman, Ridgefield, attorneys).

Before Judges HALPERN, CRAHAY and WOOD.

PER CURIAM.

This is a suit for rent by plaintiff landlord against defendant tenant claiming damages in the sum of $5,865, with interest and costs. Defendant counterclaimed for the return of $345 which represented one month's security deposit. The case was tried on a stipulation of facts, 1

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and without [378 A.2d 776] oral argument. Under these circumstances, the trial judge's decision is not entitled to any special deference since he saw no witnesses and had the same written record before him as we have on appeal. See State v. Johnson, 42 N.J. 146, 161, 199 A.2d 809 (1964); Cemetery Workers v. Roman Cath.

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Diocese, Newark, 127 N.J.Super. 277, 284, 317 A.2d 363 (App.Div.1974); certif. den. 65 N.J. 563, 325 A.2d 697 (1974).

The trial judge, applying what he termed "justice and fair dealing" and the modern trend of the law, dismissed plaintiff's complaint because (a) defendant's offer to surrender was unequivocal and that plaintiff was under a legal duty to reject it; hence his silence was an acceptance of the offer to surrender which, in turn, terminated the tenancy, and (b) plaintiff's failure to mitigate damages barred his right to relief. In addition, he dismissed defendant's counterclaim without stating his reasons for doing so.

This case typifies situations wherein courts must be careful not to permit hard cases, which create sympathy for a litigant, to make bad law. See the dissenting opinion of Justice Holmes in Northern Securities Co. v. United States, 193 U.S. 197, 400, 24 S.Ct. 436, 48 L.Ed. 679 (1904). We understand and are in complete accord with the modern approach and philosophy expressed by our Supreme Court in cases like Weintraub v. Krobatsch, 64 N.J. 445, 317 A.2d 68 (1974); Marini v. Ireland, 56 N.J. 130, 265 A.2d 526 (1970); Reste Realty Corp. v. Cooper, 53 N.J. 444, 251 A.2d 268 (1969); Totten v. Gruzen, 52 N.J. 202, 245 A.2d 1 (1968), and Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 207 A.2d 314 (1965), which were relied on by the trial judge. But we are not here concerned with one who has misrepresented the condition of premises to be sold or rented, or has failed or refused to furnish agreed upon services to his tenant, or has installed defective equipment in premises demised or sold to another. Rather, we have a landlord who was prepared to comply fully with his lease agreement voluntarily made between the parties, and where the tenant was under no compulsion by reason of any housing shortage to make the lease.

We are not unsympathetic to defendant's plight resulting from his broken marriage plans, but we are not prepared to abrogate the law of contracts because of it. Admittedly, defendant breached the lease agreement with plaintiff. Therefore, if he is to be relieved from his obligations

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under the lease, he has the burden of proving there has been a surrender by act and operation of law and that such has been accepted by plaintiff. N.J.S.A. 25:1-2. Concisely stated:

[378 A.2d 777] Whether there has been a surrender by operation of law depends on the intention of the parties to be deduced from their words and acts, and is ordinarily a question of fact for the jury. The burden of proof is on the party alleging the surrender, and where it is to be...

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3 practice notes
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • 29 June 1977
    ...to pay rent. As a result, he dismissed both the complaint and the counterclaim. The Appellate Division reversed in a per curiam opinion, 153 N.J.Super. 1 (1976), and we granted certification. 69 N.J. 395, 354 A.2d 323 Riverview Realty Co. v. Perosio This controversy arose in a similar manne......
  • Shephard on Behalf of Shepard v. Scheeler
    • United States
    • Supreme Court of Louisiana
    • 21 October 1997
    ...1979); State Farm Mut. Auto. Ins. Co. v. Budd, 185 Neb. 343, 175 N.W.2d 621, 44 A.L.R.3d 476 (Neb., Mar. 20, 1970); Sommer v. Kridel, 153 N.J.Super. 1, 378 A.2d 774 (N.J.Super. A.D., Jun. 12, 1975); Lowe v. Bloom, 112 N.M. 203, 813 P.2d 480 (N.M., Jun. 12, 1991); Buschke v. Dyck, 197 Or. 14......
  • Ringwood Associates, Ltd. v. Jack's of Route 23, Inc.
    • United States
    • New Jersey Superior Court – Appellate Division
    • 13 February 1979
    ...duty to mitigate damages to commercial landlords. See 153 N.J.Super. at 306-308, 379 A.2d 508. This extension of Sommer v. Kridel, 74 N.J. 446, 378 A.2d 774 (1977), was unnecessary. Since the trial judge correctly determined that plaintiff's predecessor in title materially breached the assi......
3 cases
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • 29 June 1977
    ...to pay rent. As a result, he dismissed both the complaint and the counterclaim. The Appellate Division reversed in a per curiam opinion, 153 N.J.Super. 1 (1976), and we granted certification. 69 N.J. 395, 354 A.2d 323 Riverview Realty Co. v. Perosio This controversy arose in a similar manne......
  • Shephard on Behalf of Shepard v. Scheeler
    • United States
    • Supreme Court of Louisiana
    • 21 October 1997
    ...1979); State Farm Mut. Auto. Ins. Co. v. Budd, 185 Neb. 343, 175 N.W.2d 621, 44 A.L.R.3d 476 (Neb., Mar. 20, 1970); Sommer v. Kridel, 153 N.J.Super. 1, 378 A.2d 774 (N.J.Super. A.D., Jun. 12, 1975); Lowe v. Bloom, 112 N.M. 203, 813 P.2d 480 (N.M., Jun. 12, 1991); Buschke v. Dyck, 197 Or. 14......
  • Ringwood Associates, Ltd. v. Jack's of Route 23, Inc.
    • United States
    • New Jersey Superior Court – Appellate Division
    • 13 February 1979
    ...duty to mitigate damages to commercial landlords. See 153 N.J.Super. at 306-308, 379 A.2d 508. This extension of Sommer v. Kridel, 74 N.J. 446, 378 A.2d 774 (1977), was unnecessary. Since the trial judge correctly determined that plaintiff's predecessor in title materially breached the assi......

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