Zabriskie v. Sullivan

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtVOORHEES, J.
Citation77 A. 1075,80 N.J.L. 673
PartiesZABRISKIE v. SULLIVAN.
Decision Date05 November 1910
77 A. 1075
80 N.J.L. 673

ZABRISKIE
v.
SULLIVAN.

Supreme Court of New Jersey.

Nov. 5, 1910.


Appeal from District Court of Jersey City.

Action by Augustus Zabriskie, trustee, against John Sullivan. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued June term, 1910, before GARRISON, SWAYZE, and VOORHEES, JJ.

James R. Bowen, for appellant.

Herrmann & Steelman, for respondent.

VOORHEES, J. This suit was brought upon a written lease to recover rent for the months of November and December, 1909, at $70 per month. Judgment was rendered for the plaintiff. The lease was executed by Augustus Zabriskie, trustee, under the will of Margaret Ginocchio, whereby he leased to the defendant certain premises in Jersey City for "one year from November 1, 1907, at the yearly rent of $840, to be paid monthly in advance, i. e., $70 on the 1st of each month." There was a covenant on the part of the landlord for quiet enjoyment, and one on the part of the tenant to pay the rent as specified and to surrender the premises in good condition at the expiration of the term.

The case shows that the defendant took possession at the commencement of the term and remained in possession until October 30, 1909, paying the rent reserved during the whole period. On September 30, 1909, the defendant notified the plaintiff of his intention to quit on October 31, 1909, which the landlord promptly informed him was an insufficient notice in point of time and that he would not be released from the tenancy.

The first contention on the part of the appellant is that the plaintiff as trustee, under the provisions of the will creating him a trustee, and which gave him "full power to dispose of and sell all my real estate provided they (the executors) obtain the written consent of such of my children as may be living," was without authority to execute a lease to the defendant, except upon such consent, because, it is asserted, a lease is a disposition of real estate. Shimer v. Phillipsburg, 58 N. J. Law, 506, 33 Atl. 852.

Assuming the fact of nonconsent, which does not affirmatively appear, and that an interpretation of the entire will would preclude the plaintiff, who took the residuary estate in trust to pay the net income or rent of the property to the children, from demising it without the children's consent, yet it is not perceived how the defendant, after entering into a formal lease with the plaintiff under which he has continued in possession, all the while...

To continue reading

Request your trial
9 practice notes
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • June 29, 1977
    ...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 and rejected in Muller v. Beck, supra ), aff'd 82 N.J.L. 545, 81 A. 1135 (E. & A. 1......
  • State v. Owen.
    • United States
    • United States State Supreme Court (New Jersey)
    • March 22, 1945
    ...the title or the right of the State to lease after having made application for and executed a lease. In Zabriskie v. Sullivan, Sup.1910, 80 N.J.L. 673, at page 674, 77 A. 1075 (affirmed Err. & App.1911, 82 N.J.L. 545, 81 A. 1135) it was held: ‘* * * it is not perceived how the defendant......
  • Benson v. Iowa Bake-Rite Co., 39266
    • United States
    • United States State Supreme Court of Iowa
    • October 16, 1928
    ...As supporting this contention, see International Tr. Co. v. Weeks, 203 U.S. 364 (51 L.Ed. 224, 27 S.Ct. 69); Zabriskie v. Sullivan, 80 N.J.L. 673 (77 A. 1075); Rose Merc. & Mfg. Co. v. Smith, 139 La. 217 (71 So. 487); West Side Auction House Co. v. Connecticut Mut. L. Ins. Co., 186 Ill.......
  • Stammelman v. Interstate Co., No. 443.
    • United States
    • United States State Supreme Court (New Jersey)
    • June 17, 1933
    ...deny the landlord's title, Howell v. Ashmore, 22 N. J. Law, 201, even after quitting possession, Zabriskie v. Sullivan, 80 N. J. Law, 673, 77 A. 1075, affirmed 82 N. J. Law, 545, 81 A. 1135. In 1931, Mortimer J. Stammelman and Bertha Tunick severally deeded their respective rights, title, a......
  • Request a trial to view additional results
9 cases
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • June 29, 1977
    ...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 and rejected in Muller v. Beck, supra ), aff'd 82 N.J.L. 545, 81 A. 1135 (E. & A. 1......
  • State v. Owen.
    • United States
    • United States State Supreme Court (New Jersey)
    • March 22, 1945
    ...the title or the right of the State to lease after having made application for and executed a lease. In Zabriskie v. Sullivan, Sup.1910, 80 N.J.L. 673, at page 674, 77 A. 1075 (affirmed Err. & App.1911, 82 N.J.L. 545, 81 A. 1135) it was held: ‘* * * it is not perceived how the defendant......
  • Benson v. Iowa Bake-Rite Co., 39266
    • United States
    • United States State Supreme Court of Iowa
    • October 16, 1928
    ...As supporting this contention, see International Tr. Co. v. Weeks, 203 U.S. 364 (51 L.Ed. 224, 27 S.Ct. 69); Zabriskie v. Sullivan, 80 N.J.L. 673 (77 A. 1075); Rose Merc. & Mfg. Co. v. Smith, 139 La. 217 (71 So. 487); West Side Auction House Co. v. Connecticut Mut. L. Ins. Co., 186 Ill.......
  • Stammelman v. Interstate Co., No. 443.
    • United States
    • United States State Supreme Court (New Jersey)
    • June 17, 1933
    ...deny the landlord's title, Howell v. Ashmore, 22 N. J. Law, 201, even after quitting possession, Zabriskie v. Sullivan, 80 N. J. Law, 673, 77 A. 1075, affirmed 82 N. J. Law, 545, 81 A. 1135. In 1931, Mortimer J. Stammelman and Bertha Tunick severally deeded their respective rights, title, a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT