26 N.J. Misc. 292 | New Jersey Circuit Court | 1948
The plaintiffs herein have instituted an ejectment action seeking possession of the entire house known as No. 13 Spring Street in the City of Newark. The complaint is in the statutory form and alleges that the plaintiffs’ right of possession accrued on June 1st, 1948. The defendants have filed an answer containing a general denial and four separate defenses. The first separate defense alleges that the defendants are sub-tenants of the tenant, George Teamer, who held a month-to-month tenancy on the property in question. The said George Teamer died on the 24th day of May, 1948. The second separate defense alleges that these defendants are entitled to the protection afforded to tenants under the Housing and Bent Control Act of 1948, 50 U. S. C. A. Appendix, §§ 1881, et seq. The third separate defense Challenges the jurisdiction of the court and the fourth separate defense challenges the constitutionality of R. S. 2:51-25, N. J. S. A.
The plaintiffs move to strike the answer as sham in part and insufficient in law in part. The affidavit relied on by the plaintiffs admits that George Teamer was a month-to-month tenant but states that the said George Teamer on or about May 10th, 1948, gave written notice of the termination of his tenancy on or before May 31st, 1948. A copy of the notice is attached to the affidavit and the affidavit further says that the said notice was accepted by the plaintiffs. Tile affidavit further sets forth the death of George Teamer on May 24th, 1948, and says that these defendants occupy the premises without the consent or permission of the plaintiffs and that they are trespassers, in that at no time was there any relationship of landlord and tenant between the plaintiffs and defendants.
The answering affidavit made by one of the defendants admits that the defendants are in possession of the premises.
The general rule of law is that the death of a party does not terminate a lease. A statement of the rule is contained in 51 C. J. S., Landlord and Tenant 659, § 92, as follows: "In the absence of a covenant otherwise providing, as-a gen.eral rule a lease is not terminated by the death of the lessor or the lessee.” That this rule prevails in this state is clear. In Levigton v. Tuly (Court of Chancery, 1940), 126 N. J. Eq. 552; 10 Atl. Rep. (2d) 641, Vice-Chancellor Bigelow, 126 N. J. Eq. (at p. 553); 10 Atl. Rep. (2d) (at p. 642), said: “A tenancy from month to month is not terminated by the death of t!he tenant but his interest therein passes to his executor or administrator.” This rule was also stated in Dorfman v. Barnett (Circuit Court, 1946), 24 N. J. Mis. R. 212; 48 Atl. Rep. (2d) 217, but was held inapplicable because the written contract evinced the intention to limit the occupancy to the lessee. In that case Mr. Justice Burling, then a Circuit Court Judge, 24 N. J. Mis. R. (at p. 218); 48 Atl. Rep. (2d) (at p. 218), said: “The.fact of the lessee’s death has created the issue in this controversy and requires the construction of the lease. Although a tenancy from month to month is not terminated by the death of the tenant and his interest passes to his administrator, Levigton v. Tuly, supra, still the contract of the parties makes this rule inapplicable. In the written lease and contract of the parties emphasis was laid upon the character of the occupancy. Prom the standpoint of the landlord, a meticulous evaluation of the lessee was carefully exhibited in the lease. Throughout the entire contract is evinced the intention to limit the occupancy to the lessee.”
Likewise distinguishable are the cases of Brigham v. Kidder (Court of Errors and Appeals, 1923), 99 N. J. L. 79; 122 Atl. Rep. 740, and Capdeville v. Robins (Circuit Court, 1932),
It is clear in the instant case that the death of the tenant without more did not operate to terminate the month to month tenancy. It is also the well settled law in this state that assignment and sub-letting are naturally incident to a leasehold estate, and are not to be restricted unless by express stipulation to that effect. Farmer v. Davies (Court of Errors and Appeals, 1922), 97 N. J. L. 309; 116 Atl. Rep. 706; Simpson v. Moorhead (Court of Chancery, 1904), 65 N. J. Eq. 623; 56 Atl. Rep. 887; Braunstein v. McGrory Corp. (Court of Errors and Appeals, 1922), 93 N. J. Eq. 419; 116 Atl. Rep. 707; Field v. Mills (Supreme Court, 1869), 33 N. J. L. 254. A sub-letting creates the relationship of landlord and tenant between the tenant and the sub-tenant but there is no privity of contract between a landlord and a subtenant. Anything which defeats the tenants’ estate will destroy the sub-tenants’ estate. Cifelli v. Santamaria (Supreme Court, 1910), 79 N. J. L. 356; 15 Atl. Rep. 434; D’Agostino v. Sheppard (Court of Errors and Appeals, 1925), 102 N. J. L. 154; 130 Atl. Rep. 520. However, this court must take judicial notice of the provisions of the Federal Housing and Bent Control Act of 1948. In view of this act the question arises as to the right of sub-tenants to remain in possession even in the event that the leasehold of the sub-lessor has been terminated. This court has not found any reported cases
Apparently our state courts have not had occasion to pass on the applicability of the Housing and Eent Acts of 1947 and 1948 but in this connection it is to be noted that our legislature enacted a law on July 22d, 1946, known as the “Rent Control Act.” This act was suspended by the Governor on July 30th, 1946. R. S. 2:58-32.16; N. J. S. A. 2:58-32.16, a part of the Eent Control Act contains certain definitions. Under paragraph (C) of this section a tenant is defined as “A lessee, sublessee, licensee, or other person entitled to the possession or to the use or occupancy of the whole or a part of any housing space.” This act, of course, is not controlling but is referred to as illuminative of the intent of our legislature.
It is the duty of the Court on this motion to determine whether an issue of fact has been presented and not to try the issue on affidavits. Barnes v. P. & D. Manufacturing Co. (Court of Errors and Appeals, 1936), 117 N. J. L. 156; 187 Atl. Rep. 186. In the instant case the affidavits raise an issue of fact as to the character of the possession of the defendants.
While I feel that this motion to strike the answer must be denied on the merits, I am also mindful of the fact that the intendment of our Federal Housing and Rent Control Act ■and the public policy of our legislature as expressed in the now suspended Rent Control Act must bo given serious consideration. If this court were to hold that sub-tenants had no rights to continue their possession of housing accommodations upon the termination of the lessee’s estate, the practical effect would be to nullify the provisions of the Federal Housing and Rent Control Act.
The motion to strike the answer is denied. Counsel may ■present an appropriate order and place case on commercial calendar.