Opinion
Submitted May 29, 1942 —
Decided September 18, 1942.
On appeal from a judgment of the Atlantic County Circuit Court, entered on order of Judge Jayne, who filed the following opinion:
"The plaintiff seeks the allowance of a rule striking out the answer and also the counter-claim of the defendant. The action is prosecuted to recover rent in the sum of $750. The defendant has averred that he was evicted from the demised premises by the plaintiff. Accompanying his answer is a counter-claim against the plaintiff for damages.
"From the affidavits presented at the argument of this motion, certain undisputed facts emerge. On April 22d 1940, the defendant by an agreement in writing leased from the plaintiff for the term of three years a certain area of the beach in front of the Hotel Chelsea at Atlantic City. The site has a width of approximately 250 feet and extends from the public boardwalk to the ocean. It was contemplated that the defendant would use this section of the beach in his business of supplying to the hotel guests and others, beach chairs, cabanas, umbrellas and like accessories. It is acknowledged that the defendant has not paid the installments of rent that accrued in accordance with the terms of the lease on the first days of June, July and August, 1940. Another unquestioned fact of significance is that the defendant has retained and still retains possession of the demised premises and refuses to pay any rent. He avers an eviction by the plaintiff, his landlord.
"True, an eviction of a tenant by the landlord operates to suspend the obligation of the tenant to pay rent during the continuance of the eviction. Hunter v. Reiley, 43 N.J.L. 480; Morris v. Kettle, 57 Id. 218 .
"This rule, however, must be importuned by the essential and indispensable facts. The basic facts asserted by the defendant are that at the execution of the lease, there were two stairways leading from the boardwalk to the beach at Brighton Avenue and also two similar stairways at Morris Avenue. These passageways were entrances to the demised premises. The defendant states that shortly after the commencement of his tenancy, the plaintiff removed one of the stairways at Brighton Avenue and one at Morris Avenue. The plaintiff declares that these particular stairways were removed before the lease was executed and that each was removed by the officials of the city. Of course, the credibility of contradictory or divergent affidavits can not be resolved in the determination of this motion.
"The uncontroverted facts are here decisive. It is evident that there has always existed one stairway or suitable entrance to the demised premises at Brighton Avenue and also one at Morris Avenue over either of which persons could descend from the boardwalk to the beach occupied by the defendant. Obviously, the defendant nurtures the idea that the more entrances to his premises, the greater will be the volume of business. It is inconceivable that so many patrons desiring such accommodations assemble at the same time as to render one stairway at the street end inadequate for their convenient admission to the beach. A vain dream in recent years. The thesis of the tenant is that he may remain in possession of the premises and withhold the entire rental as quid pro quo for some inestimable loss of profits from some customers who, perchance, would decline to walk a few more feet on the boardwalk (from one side of the street end to the other) to the existing stairway to reach the beach.
"Every mere abridgment or interference of a landlord with the enjoyment of the demised premises does not necessarily have the legal signification of an eviction. An eviction is an act of a permanent character done by the landlord in order to deprive, and which has the effect of depriving, the tenant of the use of the premises demised or a part of them. Upton v. Townsend, 17 C.B. 30; Morris v. Kettle, supra; Meeker v. Spalsbury, 66 N.J.L. 60; O'Neil v. Pearse, 87 Id. 382; affirmed, 88 Id. 733; Schnitzer v. Lanzara, 115 Id. 332 .
"To invoke the theory of a constructive eviction there must be an actual surrender of possession of the whole or part of the demised premises as a result of the wrongful act of the landlord. Metropole Construction Co. v. Hartigan, 83 Id. 409; Pabst v. Schwarzstein, 101 Id. 431 .
"Here the act of the landlord, if truly stated by the defendant, may have perhaps in some measure interfered with the most convenient use of the premises by the defendant but it has not deprived him of the use and occupancy of the beach in his business. The disturbance of which the defendant complains arose, he states, shortly after the beginning of his tenancy and the fact is the defendant has chosen to remain in possession of the area demised. The payment of rent is not suspended by reason of a partial eviction unless the deprivation of such part is in character and degree sufficient to prevent the beneficial enjoyment by the tenant of the entire property. Reade v. Bodine, 2 N.J. Mis. R. 458. The legal effect of eviction is so penal that the familiar characteristics of an eviction ought not to be changed except where necessary to justly meet modern and new conditions. Assuming that the particular stairways were removed by the plaintiff and not by the city ( Cf. O'Neil v. Pearse, supra; Vailsburg Amusement Co. v. Criterion Investment Co., 9 N.J. Mis. R. 951), the facts fall short of proving an eviction legally capable of suspending the obligation of the defendant to pay rent. Accordingly, the defendant fails to reveal a defense against his liability for the unpaid rent. The summer season of 1941 has now arrived. The plaintiff is entitled to judgment for the rent. Justice delayed is sometimes justice denied. The remedy of the defendant is to be appropriately found in an action against the plaintiff for damages. Metropole Construction Co. v. Hartigan, supra.
"The issue arising out of the counter-claim in the present action can not be conveniently tried until the fall. The striking of the counter-claim is a matter of discretion. R.S. 2:27-141; Kelley v. Faitoute Iron and Steel Co., 87 N.J.L. 567; D'Orsi v. Galdieri, 126 Id. 574 ; Goodloe v. Physiatric Institute, 2 N.J. Mis. R. 375.
"In the circumstances here exhibited a rule will be granted striking out the answer and the counter-claim for the reasons stated without prejudice to the right of the defendant, if desired, to institute an action against the plaintiff grounded upon the same or similar allegations now embodied in the counter-claim."
For the appellant, Louis B. LeDuc.
For the respondent, Gorson Gorson.
The judgment under review will be affirmed, for the reasons expressed in the opinion of Judge Jayne.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, JJ. 15.
For reversal — None.