Terminal Co. v. Stoicos

• Decision Date: 09 April 1946
• Parties: TERMINAL CO. v. STOICOS et al.
• Court: New Jersey Circuit Court

46 A.2d 658

TERMINAL CO.

v.STOICOS et al.

Circuit Court of New Jersey, Atlantic County.

April 9, 1946.

Summary dispossession proceedings under the Landlord and Tenant Act by the Terminal Company against Constantine Stoices and another, to acquire possession of a certain hotel on ground that the defendants, tenants in possession of the premises, held over after expiration of their term and after demand was made with notice given by the landlord for delivery of possession of the premises to it. On motion to strike affidavit.

Motion denied.

Endicott, Dowling & Endicott, by Daniel J. Dowling, and Allen B. Endicott, 3rd, all of Atlantic City, for complainant.

Morgan E. Thomas and Edward Fishman, both of Atlantic City, for defendants.

BURLING, Circuit Judge.

On March 15, 1946, the complainant commenced proceedings in the Atlantic City District Court to acquire possession of ‘a certain Hotel, designated ‘Terminal Hotel,’ excepting thereout and therefrom bars, grills and all stores in premises situate at and known as No. 2108 Atlantic Avenue, in the City of Atlantic City' on the ground that the defendants, tenants in possession of the premises, held over and continued in possession thereof after the expiration of their term and after demand was made and written notice given by the landlord for delivery of possession of the premises to it. R.S. 2:58-17(a), N.J.S.A. Prior to the return date of the summons to show cause why possession should not be delivered to complainant, an application was made by defendants pursuant to R.S. 2:58-27 (see also R.S. 2:32-274, N.J.S.A.) to the Honorable Frederick R. Colie, a Justice of the Supreme Court of New Jersey, for an order transferring the cause to the Atlantic County Circuit Court. On March 19, 1946, an order was made by him transferring the cause to the Circuit Court of the County of Atlantic and in due season the appropriate papers were delivered to the Clerk of the Atlantic County Circuit Court, thereby vesting that Court with full and exclusive cognizance of the case. R.S. 2:58-27, N.J.S.A.

Pursuant to the mandate of the Statute, R.S. 2:58-28, N.J.S.A., a venire facias was issued by the Atlantic County Circuit Court Judge returnable within one week. Prior to the return date of the venire facias as aforesaid, defendants moved to dismiss the affidavit and the cause of action based thereon upon the grounds that:

‘1. The summons to show cause in this case states that it was issued and served for default in rent, whereas, the affidavit states that possession is sought for expiration of term.

‘2. The notice dated March 14th, 1946 and served upon the tenants on March 14th, 1946, after twelve noon on that date, referred to in the affidavit and made a part thereof, is defective in that it does not make a demand for possession, and further, in that it does not require immediate possession.

‘3. The affidavit is defective in that it is not signed properly for the reason that there is no designation of the capacity in which the signature is affixed.

4. The Atlantic County Circuit Court does not have jurisdiction in this case.'

The trial was adjourned to April 9, 1946, by consent of the parties. The motion to dismiss the affidavit was argued and briefs submitted and decision reserved until the adjourned date of trial. The jury having been summoned in accordance with the venire facias and the cause coming on for trial in the presence of the parties and their attorneys to inquire into and try the proceedings for the possession of said premises, the defendants renewed their motion to strike out the affidavit of the complainant and the cause of action upon the aforesaid grounds. Ground No. 3 was abandoned at the time of the argument.

The grounds assigned are without merit and the motion is denied.

First Ground-The summons to show cause issued in this cause was prepared on the ordinary printed form used in the Atlantic City District Court. Such summons is the only one used in that Court in landlord and tenant cases. On the backing or endorsement, inter alia, are the printed words ‘Summons to Show Cause’ and beneath that, ‘Default in Rent’. Toward the bottom of the backing is printed in columnar form the words ‘Rent,’ ‘Costs,’ and ‘Mileage.'

The summons was prepared by counsel for the complainant and was signed and issued by the Clerk of the District Court of the City of Atlantic City. Through an oversight complainant's counsel failed to cause the words ‘Default in Rent’ to be stricken.

There is no statutory or other authority requiring any endorsement to be placed upon the back of a summons to show cause in a landlord and tenant case. In this respect this type of summons to show cause is to be distinguished from an ordinary summons, calling upon the defendant to answer a state of demand which sets forth an action for the recovery of a sum certain. In the latter case, R.S. 2:32-22 N.J.S.A., requires the clerk of the Court to enter in the body of each summons the sum demanded, and to endorse the amount of the said sum and the costs on the said summons. The reason for this requirement is set forth in R.S. 2:32-23, N.J.S.A., which provides that the defendant, before taking any action in the cause, may pay to the constable serving the process the sum demanded with costs, and that the constable's receipt shall be a full discharge of the defendant. In a case subject to the provision of the above...