Vineland Shopping Center, Inc. v. De Marco

Decision Date13 July 1961
Docket NumberNo. A--145,A--145
PartiesVINELAND SHOPPING CENTER, INC., Plaintiff-Respondent, v. Louis DE MARCO, Defendant-Appellant.
CourtNew Jersey Supreme Court

C. Zachary Seltzer, Camden, for defendant-appellant (Lipman & Casella, Vineland, attorneys; Philip L. Lipman, Vineland, of counsel).

Thomas K. J. Tuso, Vineland, for plaintiff-respondent (Joseph Tuso, Vineland, attorney).

The opinion of the court was delivered by


This appeal involves a dispossess action. The county district court granted the landlord's motion for summary judgment. The Appellate Division affirmed 65 N.J.Super. 223, 167 A.2d 414 (1961), and we allowed certification 34 N.J. 324, 168 A.2d 694 (1961).

The lease is for a term of five years beginning June 15, 1957, at a monthly rental of $225, with an option in the tenant to renew for a further term of five years. The complaint alleged a number of violations of the lease, but judgment was entered solely upon a finding that the tenant failed to pay sewerage charges under a covenant reading:

'Tenant agrees that it will pay all charges for electricity, water, gas, telephone, heat and fuel, sewer and other utility services used on the leased premises.'

On June 10, 1960, plaintiff served upon defendant a notice 'that your tenancy * * * is hereby terminated' for stated reasons, including the failure to pay the sewerage charge. That charge, with interest, was $182.85 and covered three semiannual installments payable in advance, beginning with June 1, 1959. On the day the notice was served, defendant paid the charge directly to the Landis Sewerage Authority. The suit was started ten days later and hence after payment had been made.

The lease does not spell out the mechanics of payment of the sundry items listed in the covenant quoted above, by which we mean that it does not state whether payments are to be made to the suppliers or to the landlord upon the latter's invoice. The record is silent as to past practices. Indeed we do not know whether the sewerage authority billed the owner or the tenant. We know only that immediately upon service of the mentioned notice, defendant made the payment directly to the Authority. The record is devoid of any suggestion that plaintiff was injured or prejudiced by the delay. There was no prior demand for payment, plaintiff invoking the provision of the lease:

'Provided, however, that if any rents shall be due and unpaid or if default shall be made in any of the covenants, conditions and rules herein contained for a period of 30 days, then it shall be lawful for the said landlord as his option without notice and without any demand for said rent or for the performance of said covenants, conditions and rules or regulations, to declare this lease null and void and the said them ended and to re-enter the said premises and remove all persons therefrom or to proceed by action for the recovery of possession thereof, or otherwise however.'


Initially we must consider the scope of appellate review.

The summary dispossess statute originated in 1847 (p. 142). The purpose was to give the landlord a quick remedy for possession. Appellate review was barred, thus giving finality to the trial court's judgment with respect to possession. The tenant was remitted to an action for damages in which the judgment in the possessory action had no binding effect upon the ultimate merits of the case. McGann v. La Brecque Co., Inc., 91 N.J.Eq. 307, 308, 109 A. 501 (E. & A. 1920); Opalach v. Cebulah, 2 N.J.Super. 139, 141, 65 A.2d 67 (App.Div.1949).

In actual practice it is doubtful the legislative objective was achieved. For one thing, such actions were viewed with much hostility, the courts dismissing for minute failures to meet the statutory prescriptions. Further, the former Court of Chancery exerted its power to relieve upon grounds not cognizable at law, a power which was upheld when relief was sought prior to the entry of judgment in the possessory action. Crest Drug Store, Inc. v. Levine, 142 N.J.Eq. 652, 61 A.2d 190 (E. & A. 1948); Red Oaks, Inc. v. Dorez, Inc., 120 N.J.Eq. 282, 184 A. 746 (E. & A. 1936); Sparks v. Lorentowicz, 106 N.J.Eq. 178, 150 A. 351 (E. & A. 1930); H. Windholz & Son v. Burke, 98 N.J.Eq. 471, 131 A. 386 (Ch.1925); 18 N.J. Practice (Fulop and Kain, District and Municipal Courts, 1954) § 1569, p. 140. Finally, it was held that the Legislature could not curb the inherent authority of the former Supreme Court to review the jurisdiction of lower tribunals, and hence the proceedings remained reviewable by Certiorari to that extent. Fowler v. Roe, 25 N.J.L. 549 (Sup.Ct.1856); Stanley v. Horner, 24 N.J.L. 511 (Sup.Ct.1854). The present statute incorporates this decisional law, providing in N.J.S. 2A:18--59, N.J.S.A.:

'Proceedings had by virtue of this article shall not be appealable except on the ground of lack of jurisdiction. The landlord, however, shall remain liable in a civil action for unlawful proceedings under this article.'

In brief, the quest for a speedy possessory result has spawned procedural quarrels which delay access to the merits and frustrate the litigants who foot the bill. In 1951 the Advisory Committee on Revision of Statutes noted in Suggested Changes to the Tentative Draft of the Revisioin of Titles 2 and 3 (2A:32--273, p. 92):

'Comment: The Committee has received a great many suggestions that landlord and tenant proceeding be made appealable. We do not oppose the principle of appeal in these cases but feel that under present economic conditions, to permit appeals would give the tenant an unfair advantage. The committee is not at this time ready to recommend that appeals be permitted.'

The substance of the former statute, R.S. 2:32--273, was accordingly continued as N.J.S. 2A:18--59, N.J.S.A., which we quoted in the paragraph above.

Appellate review thus remains limited to matters of 'jurisdiction.' Pennsylvania R.R. Co. v. L. Albert & Son, Inc., 26 N.J.Super. 508, 98 A.2d 323 (App.Div.1953), certification denied 13 N.J. 361, 99 A.2d 675 (1953); Davidson v. Burstein, 10 N.J.Super. 91, 76 A.2d 715 (App.Div.1950); Hertzberg v. Siegel, 8 N.J.Super. 226, 73 A.2d 840 (App.Div.1950); Opalach v. Cebulah, supra, 2 N.J.Super. 139, 65 A.2d 67. In passing we note that either party 'may apply to the superior court, which may, if it deems it of sufficient importance, order the cause transferred' to it, N.J.S. 2A:18--60, N.J.S.A., in which event the final judgment 'shall be appealable.' N.J.S. 2A:18--61, N.J.S.A. McCrory Stores Corp. v. S. M. Braunstein, Inc., 99 N.J.L. 166, 169, 122 A. 814 (E & A. 1923). Thus, oddly, appellate review may be had if an order of transfer is obtained. Neither party here sought one.

The jurisdictional question is not merely whether the controversy is between landlord and tenant with respect to possession, for the Legislature did not commit the entire subject to the county district court. Rather that court was granted jurisdiction to adjudicate only in specified categories of disputes. They appear in N.J.S. 2A:18--53, N.J.S.A. 'a. Where such person holds over and continues in possession of all or any part of the demised premises after the expiration of his term, and after demand made and written notice given by the landlord or his agent, for delivery of possession thereof. * * *

'b. Where such person shall hold over after a default in the payment of rent, pursuant to the agreement under which the premises are held.

'c. Where such person (1) shall be so disorderly as to destroy the peace and quiet of the other tenants living in said house or the neighborhood, or (2) shall willfully destroy, damage or injure the premises, or (3) shall constantly violate the landlord's rules and regulations governing said premises, provided, such rules have been accepted in writing by the tenant or are made a part of the lease; or (4) shall commit any breach or violation of any of the covenants or agreements in the nature thereof contained in the lease for the premises where a right of re-entry is reserved in the lease for a violation of such covenants or agreements, * * *.'

Our cases dealing with this statute have hewed a line separating the 'jurisdictional' issue from meritorious ones. The established principle is that the trial court had jurisdiction if there was evidence from which it could find a statutory basis for removal. If that test is met, the judgment must be affirmed even though it is otherwise infected with error. Leachman v. Kite, 133 N.J.L. 240, 241, 43 A.2d 875 (Sup.Ct.1945), affirmed o.b., 133 N.J.L. 612, 45 A.2d 810 (E. & A. 1946); Hilyard v. Heinzer, 3 N.J.Misc. 343, 348, 128 A. 383 (Sup.Ct.1925), affirmed o.b., 102 N.J.L. 217, 130 A. 918 (E. & A. 1925); Lit v. R. C. Maxwell Co., 96 N.J.L. 293, 119 A. 307 (E. & A. 1920); Seidel v. Cahajla, 129 N.J.L. 314, 315, 29 A.2d 628 (Sup.Ct.1943); Dedo v. Kuser, 103 N.J.L. 223, 225, 136 A. 594 (Sup.Ct.1927); Montalvo v. Levinston, 94 N.J.L. 87, 89, 110 A. 128 (Sup.Ct.1920); Moreland v. Steen, 89 N.J.L. 383, 99 A. 135 (Sup.Ct.1916); cf. Turtur v. Schwarz, 15 N.J.Super. 241, 83 A.2d 306 (App.Div.1951).


We come then to the question whether on the record the trial court could find plaintiff proved a case within any of the statutory categories. Plaintiff says its case falls within subsection 'c(4)' of N.J.S. 2A:18--53, N.J.S.A., quoted above, i.e., a breach of a covenant for which a right of re-entry was reserved. Defendant asserts the case comes within subsection 'b,' i.e., a default in the payment of rent. As to that subsection, N.J.S. 2A:18--55, N.J.S.A. provides that if the tenant shall 'on or before entry of final judgment' pay the rent and accrued costs to the clerk of the court, 'all proceedings shall be stopped.' Upon such payment the court's jurisdiction ends. Seidel v. Cahajla, supra, 129 N.J.L. at p. 318, 29 A.2d at p. 631. Here the payment was made before suit, and if the obligation is...

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