97 N.J.L. 103 | N.J. | 1922
The opinion of the court was delivered by
This is an appeal from, a judgment of nonsuit entered in the District Court of the city of Paterson. On April 26th, 1920, the plaintiff leased to the defendant, by an agreement in writing, a garage at Clifton, Éew Jersey, for the term of five years, to commence on May 1st, 1920, at the monthly rent, payable in advance, of $250, until January, 1921, and thereafter at the monthly rental of $300, payable in advance. The defendant entered into possession of the premises on May 1st, 1920, and continued in actual possession
At the conclusion of the plaintiff’s case the attorney for the defendant moved for a nonsuit on the ground, first, that the entry of the landlord upon the premises was an eviction of the tenant; second, that the making of the new lease by the landlord to another party was either an acceptance of the surrender of the premises from the former tenant or an eviction, and third, that the District Court had no jurisdiction. The non-suit was granted.
The question of whether or not there was an eviction of the tenant by the landlord raises a more serious question. An eviction has been defined as “an act of a permanent character done by the landlord in order to deprive, and which had the effect of depriving, the tenant of the use of the thing demised, or a part of it. Upton v. Townsend, 17 C. B. 30; Morris v. Kettle, 57 N. J. L. 218; Meeker v. Spalsbury, 66 Id. 60. In the present ease there was no actual eviction of the tenant as he vacated the premises at his own volition. The essence of an eviction is that it disturbs the possession of the tenant. Meeker v. Spalsbury, supra. A tenant who has abandoned the premises cannot- be actually disturbed in his possession. Where, however, the tenant has vacated and abandoned the premises, an eviction by a re-letting is constructive merely and should, within the reason of the rule, impose upon the landlord no penalty other than that of crediting the tenant with the sum so earned by the property during the term. In a case that presents such circumstances, the question of eviction ved non. is a question of fact. Dolton v. Sickel, 66 N. J. L. 492. In the present case the trial judge should have disposed of the question as a question of fact, as he was trying the case without a jury. He disposed of the question as a
The trial court refused to- admit in evidence the statements of the landlord’s attorney to the agent of the tenant, his son, at the time of the delivery of the kej's, as also the statements of the son. Both were agents, and at the time were acting within the scope of their authority. Their declarations were binding upon their principals and admissible in evidence. Wigm. Ev., § 1078.
The plaintiff’s action was one for rent under the lease, which became due by installments. The landlord upon this theory could only institute suit for the rent due at the time of the commencement of the action which brought the amount sued for within the limit of the jurisdiction of the District Court. -The judgment of nonsuit is reversed and a new trial ordered.