Zabriskie v. Sullivan

• Decision Date: 05 November 1910
• Citation: 77 A. 1075,80 N.J.L. 673
• Parties: ZABRISKIE v. SULLIVAN.
• Court: New Jersey Supreme Court

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 paying the rent reserved, can deny his landlord's title. Howell v. Ashmore, 22 N. J. Law, 261. This rule also estops the tenant from showing that the lease is imperfectly executed, it extends to a tenant holding over, is applicable to every species of tenancy including that at sufferance, and may be invoked in an action of debt, assumpsit, covenant, or ejectment. See Taylor, L. & T. (7th Ed.) § 705 et seq., where the rule is stated and the cases are collected. But we are of opinion that the trustee not only had the power to rent the property, but that such was his duty, imposed by the will, in the administration of the trust.

The next point urged for reversal is that the theory that a tenant is obliged to give notice of his intention to vacate has no support in the common law, and the statute does not require it....