85 N.J.L. 10 | N.J. | 1913
The opinion of the court was delivered by
The plaintiffs instituted this suit to eject the Roseville Motor Company and the other defendants, who are its subtenants, from certain premises in the city of Newark. The defendants set up that they are rightfully in possession under a lease held by the motor company upon the premises, made by Frederick E. Hodge, claiming to be the duly authorized agent of the plaintiffs for that purpose. The lease is in writing, dated February 1st, 1906, and purports to demise the premises for a term of ten years and three months from the date thereof. The motor company not only set up its right to continue in possession of the
The right of Hodge to execute the lease under which the defendants claimed the right of possession was disputed by the plaintiffs and asserted by the defendants. Whether or not he was authorized to act, however, seems to us to be unimportant, for the reason that for some years after the entry of the defendants under the lease the plaintiffs recognized their right as tenants thereunder by accepting from them from time to time the rent called for by this instrument. This being so, the first question to be determined is the rights of the respective parties under it. The first section of the statute of frauds provides that all leases for more than three years, not put in writing and signed by the parties making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases at will only. The authority of Hodge to execute the lease (if he had it) was not in writing, but was created by a conversation over the telephone. The lease, therefore, created a tenancy at will by force of the statute, and the recognition by the plaintiffs of the right of the defendants to possession under it did not at all affect the character of the latter’s tenancy. The plaintiffs, realizing that by force of the statute the defendants, if tenants at all, were tenants at will, served upon them on the 21st of August, 1911, a notice to deliver up the possession of the premises on the 1st day of October then next. But this notice was insufficient to biing the tenancy to an end. By force of our statute (section 109 of
It is urged on behalf of the plaintiffs that they had a right to eject the defendants because the latter had failed to pay the rent called for by the lease from the time of the occurrence of the fire in 1911 up to the time of the filing of the complaint. But this contention is without merit. By force of the supplement of 1874 to the act concerning landlords and tenants (Comp. Stat., p. 3078), the defendants were under no obligation to pay rent for the demised premises, notwithstanding that they continued in the occupation thereof, so long as the injury done by the fire remained unrepaired by the landlord; and the finding of the jury that the fire did not occur through any fault of theirs is supported by the proofs.
'Turning to the counter-claim of the motor company: it is admitted on their behalf that the award of the jury was far in excess of the damages which they claimed a right to recover, and that the verdict should be reduced to the amount asked for by them in their answer. But the trouble with this part of the case lies deeper. The counter-claim is without any legal basis to support it. Prior to the enactment of the statutory provisions referred to, the tenant in possession of demised premises under a lease was required to' continue the pajunent of the rent called for by that instrument, notwithstanding that the rental value thereof might be greatly decreased by fire occurring therein. Moreover, any loss resulting from the falling off of his business by reason of the partial destruction of the leased premises was one which he had no right to call upon his landlord to make good. The statute made no change in the relations'existing between the landlord and tenant so far as the responsibility of one to the other
The rule to show cause will be made absolute.