Tanella v. Rettagliata

CourtNew Jersey District Court
Writing for the CourtPAUL R. HUOT
Citation294 A.2d 431,120 N.J.Super. 400
PartiesCharles TANELLA and Anna Tanella, his wife, Plaintiffs, v. Mary Alice RETTAGLIATA, Defendant.
Decision Date19 July 1972

Page 400

120 N.J.Super. 400
294 A.2d 431
Charles TANELLA and Anna Tanella, his wife, Plaintiffs,
v.
Mary Alice RETTAGLIATA, Defendant.
District Court, Bergen County, New Jersey.
July 19, 1972.

Page 403

[294 A.2d 432] Vincent McCarthy, for plaintiff (Bergen County Legal Services Assurance Corp.) .

Guy J. Lanza, Palisades Park, for defendant.

PAUL R. HUOT, J.D.C.

In this action plaintiffs seek (1) damages for the value of a washer and a dryer; (2) damages

Page 404

for distraint of a washer and dryer; and (3) damages for [294 A.2d 433] trespass. Defendant counterclaims for rent due March, April, May and June at the rate of $235 per month, and damages to the garage located upon the property. Plaintiffs' defenses to the counterclaim raise interesting legal questions.

Plaintiffs and defendant entered into a written lease agreement, Ex. J--1 Ev., by which plaintiffs (tenants) leased from the defendant (landlord) an apartment on the second floor of premises known as 263 Terrace Avenue, Hasbrouck Heights, New Jersey, for a term of two years beginning July 1, 1969 and terminating June 30, 1971, at a monthly rental of $215 per month during the first year of said term and $235 per month during the second year of said term.

The plaintiffs entered into possession of the apartment and continued therein without event until 1971. Personal problems then developed and under date of February 18, 1971 the plaintiffs wrote to the defendant, Ex. D--1 Ev., requesting a termination of the lease on March 31, 1971 and use of the security deposit for March rent.

The defendant replied under date of March 2, 1971, Ex. D--2 Ev., indicating conditions to be met by plaintiffs to obtain defendant's consent to termination and requiring that such terms be accepted by March 5, 1971.

The plaintiffs did not respond to Ex. D--2 Ev. by March 5, 1971 (which the court notes was a Friday) and on March 8, 1971 a summons and complaint in tenancy was issued from this court by defendant. A copy of the same was served upon the plaintiffs by the constable on March 11, 1971 by affixing a copy to the door of the premises. The return date for trial of the landlord-tenant dispossess was March 18, 1971 at which time the plaintiffs herein did not appear. The case was marked default but no proofs were ever received and no judgment of possession was entered. The tenancy complaint sought possession for nonpayment of the rent due March, 1971.

The plaintiffs removed their possessions, except the washer and dryer, from the premises on March 19, 1971.

Page 405

I

In this action the plaintiffs seek the value of the washer and dryer which they contend was no removed because the defendant would not permit peaceable removal. The defendant denies this but admits that she did require, before removal, that plaintiffs provide a licensed plumber to disconnect the appliances.

The court finds as a fact that defendant did prevent plaintiffs from removing the washer and dryer on March 19, 1971 and required the services of a licensed plumber as a condition for removal. The court finds that defendant paid a licensed plumber $36.75 on or before July 1, 1971 to remove said appliances and to place them in her garage. The court further finds that since July 1, 1971 the washer and dryer were available to plaintiffs for the taking, but that plaintiffs did not obtain the same until March, 1972.

The complaint in the instant matter was filed June 2, 1971 and seeks damages for the retention of the washer and dryer. These items are now in possession of the plaintiffs so that their value has been eliminated from this case as a measure of damages.

Plaintiffs contend that they are entitled, at least, to the reasonable rental value of the washer and dryer or the cost of doing laundry at a commercial laundry for the period of one year that they were deprived of their appliances.

Defendant contends that plaintiffs are not entitled to any money for such deprivation because the failure to have the use of their appliances was caused by plaintiffs' acts. Defendant contends that the request for a licensed plumber was reasonable on the part of defendant, that plaintiffs could have obtained such plumber, removed their appliances and, if they felt it [294 A.2d 434] to be an unreasonable expense, sued for the costs.

The Building Inspector of the Borough of Hasbrouck Heights was called by the plaintiffs as an expert to

Page 406

testify that a licensed plumber was not required to disconnect the weasher and dryer. The court accepts this as a fact and finds the requirement by the defendant to be unreasonable. However, the court finds equally unreasonable the refusal of the plaintiffs to obtain a plumber for such removal. To leave behind two valuable and necessary appliances because of defendant's demand for a plumber is nonsensical. Plaintiffs' damage was caused more by their own acts than by the act of defendant.
II

The defendant has counterclaimed for rent for the months of March, April and May at $235 per month, less the security of $215 or a net of $490, in the first count of the counterclaim and for $150 damages to the garage in the second count. No evidence was adduced by the defendant concerning damage to the garage or any other property so the second count must fall for failure of proof.

The counterclaim seeks rent for March, April and May but the case was tried and argued, without objection, for March, April, May and June, the balance of the lease term. Likewise, without objection, the case was tried and argued that the plaintiffs were entitled to a return of security. Since both parties presented evidence and legal argument in the assertion of these claims the court amends the pleadings to conform to the evidence and arguments asserted. Rule 4:9--2; Rule 6:3--1.

The defendant did not obtain a new tenant until July 1, 1971 and argues that she is entitled to the rent for the apartment by virtue of the lease, Ex. J--1 Ev. The lease term, as cited above, was until June 30, 1971 at a monthly rental, at the time in question, of $235 per month. In addition paragraph Eighth of the lease provides:

EIGHTH: That in case of default in any of the covenants or if the premises become vacant, the Landlord may re-enter by means of summary proceeding or any other method prescribed by law, with

Page 407

or without notice of an intention so to do, and resume possession and re-let the premises in his own name, Without terminating this lease or in any manner affecting the obligation of the Tenant to pay the rent herein covenanted to be paid, in which event, however, there shaell be credited to the account of the Tenant the amount received from re-letting after deducting the expenses of such summary or other proceedings as may be necessary in order to regain possession under this provision, as well as the cost of re-letting the premises, and repairing and redecorating if any, And the execution of a new lease for the same premises shall not terminate the Tenant's liability or obligations hereunder, which shall in any event remain in full force and effect for the full term of this lease, and a Tenant, who has once vacated may not re-enter without the consent of the Landlord or his Agents, and no act or thing done by the Landlord or his Agents during the term hereby granted, shall be deemed an acceptance or a surrender of said premises, and no agreement to accept a surrender of said premises shall be valid, unless the same be made in writing and personally subscribed by the Landlord. And the Landlord further reserves the right to rent the premises for a longer period of time than fixed in the original lease without releasing the original Tenant from any liability. The Tenant hereby expressly waives any and all right of redemption in the event the Tenant shall be dispossessed by judgment or warrant, of any court or judge, and the Tenant waives and will waive all right to trial by jury in any summary proceeding hereafter instituted by the Landlord against the Tenant[294 A.2d 435] in respect to the demised premises or in any action brought to recover rent or damages hereunder. (Emphasis added).

It has long been held that a court must enforce a contract between parties as written, and it may not re-write the terms which the parties have agreed upon. Marini v. Ireland, 56 N.J. 130, 143, 265 A.2d 526 (1970); citing Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 161 A.2d 717 (1960). And...

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8 practice notes
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • June 29, 1977
    ...v. Griese, 12 N.J.Misc. 211, 171 A. 148 (Sup.Ct.1934); Muller v. Beck, 94 N.J.L. 311, 110 A. 831 (Sup.Ct.1920); Tanella v. Rettagliata, 120 N.J.Super. 400, 407, 294 A.2d 431 (Cty.Ct.1972); but see Zabriskie v. Sullivan, 80 N.J.L. 673, 675, 77 A. 1075 (Sup.Ct.1910) (characterized as dictum a......
  • Grodjesk v. Jersey City Medical Center
    • United States
    • Superior Court of New Jersey
    • June 16, 1975
    ...of the pleadings and pretrial order to conform to the evidence and arguments asserted during the trial. Tanella v. Rettagliata, 120 N.J.Super. 400, 406, 294 A.2d 431 Dr. Troiano has taken the position that plaintiffs are not permitted to attend lectures and seminars conducted by the Dental ......
  • Callen v. Sherman's, Inc.
    • United States
    • New Jersey Superior Court – Appellate Division
    • January 20, 1982
    ...& A. 1944); Raleigh Realty Corp. v. Jacobs, 127 N.J.L. 454, 23 A.2d 280 (Sup.Ct.1941). To the extent that Tanella v. Rettagliata, 120 N.J.Super. 400, 294 A.2d 431 (Cty.D.Ct.1972), holds otherwise, it is That part of the judgment awarding plaintiffs damages for unpaid rent is affirmed. T......
  • Ringwood Associates, Ltd. v. Jack's of Route 23, Inc.
    • United States
    • Superior Court of New Jersey
    • September 15, 1977
    ...Distributors Inc. v. Sherman Company, supra; Cohen v. Wozniak, 16 N.J.Super. 510, 85 A.2d 9 (Ch. Div. 1951); Tanella v. Rettagliata, 120 N.J.Super. 400, 294 A.2d 431 Logic and reason dictate that the law be consistent. The above citations establish that contract law is applicable in the are......
  • Request a trial to view additional results
8 cases
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • June 29, 1977
    ...v. Griese, 12 N.J.Misc. 211, 171 A. 148 (Sup.Ct.1934); Muller v. Beck, 94 N.J.L. 311, 110 A. 831 (Sup.Ct.1920); Tanella v. Rettagliata, 120 N.J.Super. 400, 407, 294 A.2d 431 (Cty.Ct.1972); but see Zabriskie v. Sullivan, 80 N.J.L. 673, 675, 77 A. 1075 (Sup.Ct.1910) (characterized as dictum a......
  • Grodjesk v. Jersey City Medical Center
    • United States
    • Superior Court of New Jersey
    • June 16, 1975
    ...of the pleadings and pretrial order to conform to the evidence and arguments asserted during the trial. Tanella v. Rettagliata, 120 N.J.Super. 400, 406, 294 A.2d 431 Dr. Troiano has taken the position that plaintiffs are not permitted to attend lectures and seminars conducted by the Dental ......
  • Callen v. Sherman's, Inc.
    • United States
    • New Jersey Superior Court – Appellate Division
    • January 20, 1982
    ...& A. 1944); Raleigh Realty Corp. v. Jacobs, 127 N.J.L. 454, 23 A.2d 280 (Sup.Ct.1941). To the extent that Tanella v. Rettagliata, 120 N.J.Super. 400, 294 A.2d 431 (Cty.D.Ct.1972), holds otherwise, it is That part of the judgment awarding plaintiffs damages for unpaid rent is affirmed. T......
  • Ringwood Associates, Ltd. v. Jack's of Route 23, Inc.
    • United States
    • Superior Court of New Jersey
    • September 15, 1977
    ...Distributors Inc. v. Sherman Company, supra; Cohen v. Wozniak, 16 N.J.Super. 510, 85 A.2d 9 (Ch. Div. 1951); Tanella v. Rettagliata, 120 N.J.Super. 400, 294 A.2d 431 Logic and reason dictate that the law be consistent. The above citations establish that contract law is applicable in the are......
  • Request a trial to view additional results

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