25 N.J.L. 549 | N.J. | 1856
The opinion of the court was delivered by
This was a proceeding under the supplement to the act concerning landlords and tenants, Nix Dig. 422.
The only question in the cause is, whether the justice
' The object of the act is to provide a more efficient remedy for the landlord, in- case — 1, a tenant shall hold over and continue in possession of demised premises, or any part thereof, after the expiration of his or her term, and after demand made and notice in writing given for delivering the possession thereof, by the landlord or his agent for that purpose ; or, 2, where the tenant holds over after any default in the payment of the rent, pursuant to the agreement under which such premises are held, and where satisfaction for such rent cannot be obtained by distress of any goods, and a demand for such rent shall have been made by three days’ notice in writing, requiring payment ór the possession of the premises, served by the person entitled to such rent, upon the persons owing the .same.
To give the justice jurisdiction of the first class of eases, it must appear—
1. That the relation of landlord and tenant exists between the parties.
2. That the tenant’s term has expired, and that, notwithstanding this, he holds over.
3. That the landlord, or his agent, has made demand, and given notice in writing to the tenant to deliver up the possession.
In the second class of cases, it must appear—
1. That the relation of landlord and tenant exists.
2. That default has been made by the tenant in the payment of rent, according to the terms of the agreement or demise under which he holds.
3 That there are no goods of the tenant on the premises out of which, the rent due can be made by distress.
- 4. That three days’ notice in writing has been served by the person entitled to the rent, on the person owing the same, requiring payment or possession.
The case before the court purported to be the case of a holding over after tenancy ended, and demand made, and notice given, according to the statute.
The second section of the statute requires, as the first step in the proceeding, that the landlord, &c., shall make and present to the justice an oath, in writing, of the facts which, according to the preceding section, authorize the removal' of a tenant, describing therein the premises claimed, before the justice shall he authorized to issue a summons in the case. And the fourth section provides, that in case of a tenancy at will or at suiferencc, or from year to year, the justice shall be satisfied, by due proof, that such tenancy has been terminated by giving notice in the manner prescribed by law. These provisions being complied with, he is to issue his summons.
The claimant in this case, in the affidavit she presented to the justice, says, “that Emory Fowler, her tenant, holds over, and continues in possession of the house and lot heretofore leased to him, situate, &c., the term of the said Emory Fowler having expired, and the said Sarah Roc having demanded possession,” &e.
The affidavit is insufficient. It does not contain a statement of the facts which authorize the removal of a tenant, within the meaning of the statute. She swears he is her tenant of a lot heretofore leased to him. But this is only her conclusion from facts which she has not disclosed. How is he her tenant ?- What was the transaction which she calls a leasing ? She withholds the facts, and swears
But, in the second place, the evidence produced at the trial utterly failed to establish the fact of a tenancy. The case commenced in assertion, and ended without proof. The evidence was that Emory Fowler, the defendant, owned the premises in question in 1848; that he had given two mortgages on it, one to Stout, for $312, and one to Lane for $212. Some time in that year Fowler made a proposition to John Eoe, the father of Sarah Eoe, the complainant,
No case could better illustrate the importance of requiring the complainant to disclose in the affidavit the facts upon which the complaint is grounded. The complainant here, we doubt not, believed that Fowler was her tenant, and that his term had expired, and had therefore no hesitation in so swearing. But if she had been required not only to say he was her tenant, but liow he was so, she could scarcely have been able to put on paper a case with which she could have even deluded herself.
The counsel of the defendant, before the trial, moved to dismiss the proceedings on account of the insufficiency of the affidavit; and, after the complainant’s evidence had closed, again moved to dismiss the case for want of proof of the tenancy. Both motions were overruled, and the verdict and judgment were for the claimant.
It is clear the ease was not within the jurisdiction of the justice under the act, and the judgment is reversed»
Cited in Schuyler v. Trefren, 2 Dutch. 213; Mor. Can. & B’nk’g Co. v. Mitchell, 2 Vr. 103; Shepherd v. Sliker, 2 Vr. 433; Brahm v. Jersey City Forge Co., 9 Vr. 75; McQuade v. Emmons, 9 Vr. 398.