96 N.J.L. 70 | N.J. | 1921
pursuant to the statute, by whom the following opinion was rendered:
The stipulation ‘of facts in the case presents a situation Wherein the Brom Realty Company let and rented premises, 648 Newark avenue, in Jersey Citjr, to the prosecutor, who thereafter and while in possession entered into- an agreement with one Engel for the assignment of the lease for $1,000, which sum Arnheiter offered! to pay to the Brom company for its consent to the assignment. The landlord at first accepted the proposition, but later declined it, seeking an additional sum. Meanwhile Engel, on the strength of the acceptance, entered into possession, having purchased the prosecutor’s business conducted therein. The Brom company thereafter instituted proceedings in the District Court against both Arnheiter and Engel to recover possession, and the latter
While Engel was in possession under the transfer from Arnheiter he went into- bankruptcy, and at the- time of the institution of the dispossess proceedings a, receiver in bankruptcy was legally in possession of his effects, including whatever rights of possession he had in the premises under the Arnheiter transfer.
The case shows that the landlord never recognized any existing legal relationship, contractual or1 otherwise, with Engel. Arnheiter alone was considered the only person to whom any legal right or duty was owing under the relationship- of landlord and tenant existing between, them. Engel, therefore, may be eliminated from consideration, and the inquiry thus presented is whether Arnheiter was legally dispossessed fiom his possession of the premises.
The summons in- dispossession proceedings was served upon Engel, who was physically in possession of the premises, although not legally so because of the bankruptcy adjudication made the same morning. Arnheiter was elsewhere in the county and could have been personally served with process at his residence therein. He knew nothing of the proceedings or the judgment in.- dispossession until after judgment had been entered against him. The question presented therefore is-, Was the sendee of summons upon Engel equivalent under the-statute to a service upon Arnheiter? The proceedings to dispossess are, of course, entirely statutory and must he strictly followed to warrant a judgment of dispossession. The Dis
If this were an ordinary perfunctory slip- in the proceedings the defendant’s suggestion of remanding the ease to the District Court for emendation would be applicable, but a failure in the first instance to- acquire jurisdiction presents no basis for amendment. Ross v. Ward, 16 N. J. L. 23.
The result is the judgment under review must be vacated.