State v. Ryan

• Decision Date: 17 February 1887
• Citation: 49 N.J.L. 314,8 A. 293
• Parties: STATE (CANNON and another, Prosecutors) v. RYAN.
• Court: New Jersey Supreme Court

8 A. 293

49 N.J.L. 314

STATE (CANNON and another, Prosecutors)

v. RYAN.

Supreme Court of New Jersey.

February 17, 1887.

(Syllabus by the Court.)

J. S. Wright, for prosecutors.

T. J. Cloke, for defendant.

REED, J. This is a summary proceeding, under the landlord and tenant act, instituted for the purpose of turning the tenant or tenants out of possession for the non-payment of rent. Notice to pay the sum of seven dollars, one month's rent, was served on the prosecutors on the twenty-fourth of April, 1886. The affidavit upon which the rule to show cause was issued, was made April 27, 1886. Judgment was rendered against the prosecutor Mary Cannon alone. The affidavit sets out that prosecutors were in possession of deponent's house, upon an agreement whereby deponent rented the said house to the prosecutors, to hold the same from the thirteenth day of October, 1885, to the thirteenth day of April, 1886, at the rent of six dollars a month, to be paid in monthly payments in advance; that on the fourteenth day of March, 1886, deponent gave notice to said parties that he would charge the sum of seven dollars per month thereafter; and that one month's rent thereof, amounting to seven dollars, came due on the fourteenth day of April, 1886.

The notion of the justice was obviously that the tenants remained in possession, and by so doing accepted the terms which the landlord had communicated to them by his notice. It is undoubtedly the law that contracts may arise by an acceptance of a proposition by actions as well as by words. 1 Whart. Cont. § 6. In the case of Roberts v. Hayward, 3 Car. & P. 432, a party occupied premises, under an agreement, for three years, at £45 a year, which expired at midsummer, 1826. He did not then go out, nor did the landlord take any steps to compel him; but at the Michaelmas following gave him notice to quit on Ladyday, 1827, or pay the rent of £50 a year. The tenant continued in, but refused to pay more than the £45 rent. Chief Justice Best said that the silence of the tenant is equivalent to his saying: "I will continue in on the terms of your proposal." It was held that a distress levied at the rate of £50 was regular. This ruling was affirmed in banc on motion for a new trial.

It appears, however, that the fourteenth day of March, 1886, was Sunday. This objection was taken on the trial, and on the reasons assigned for reversal here. The court attempted to amend the affidavit on the ground that this was a clerical error, but no other date was substituted, and in fact no amendment was made. Nor could any amendment of the affidavit have been made at the trial. No power is given by statute to amend it. It is a sworn statement of fact, upon which the issuance of the summons and the subsequent proceedings rest. No new affidavit can be interjected into the case at the trial. So the case stands upon the fact that notice was given on a Sunday that the landlord would, after the expiration of the existing term, charge seven dollars. The court will take judicial notice that the fourteenth of March, 1886, was Sunday. Heed v. Wilson, 41 N. J. Law, 29. Now, I am of the opinion that whatever force such notice, if given upon a working day, in connection with the retention of possession by the...