Summary
In McGann v. La Brecque Co., Inc., supra, Mr. Justice Swayze said that "since the correctness of the present judgment for possession is not disputed and no equitable right was involved, the jurisdiction of the court of chancery could not be sustained."
Summary of this case from Red Oaks, Inc. v. Dorez, Inc.Opinion
No. 45/701.
06-03-1919
McGANN v. LA BRECQUE CO., Inc.
Milton M. Unger and Frank E Bradner, both of Newark, for complainant. Burnett, Sorg, Murray & Duncan, of Newark (D. Frederick Burnett, of Newark, on the brief), for defendant.
Syllabus by the Court.
"To be officially reported."
Suit for injunction by Joseph F. McGann against the La Brecque Company, Incorporated. Order to show cause dissolved, restraint vacated, and motion to strike the bill granted.
Milton M. Unger and Frank E Bradner, both of Newark, for complainant.
Burnett, Sorg, Murray & Duncan, of Newark (D. Frederick Burnett, of Newark, on the brief), for defendant.
LANE, V. C. The bill alleges that the La Brecque Company is in possession of a large storage warehouse under a lease dated August 1, 1917, for a period terminating April 30, 1926. The lease contains the following clause:
"It is further understood and agreed between the parties hereto that a sale of the property by the party of the first part shall terminate this lease upon six months' written notice to the party of the second part, and in lieu of compensation it is hereby agreed that the rent shall be waived during the six months' notice to vacate."
On October 30, 1918, the following notice was served upon complainant:
"Newark, N. J., October 30, 1918. "To the McGann Company, J. F. McGann, Proprietor, and Joseph F. McGann, Individually and Trading as the McGann Company: "You will please take notice that the premises leased by you from P. Ballantine & Sons by written lease dated the 1st day of August, 1917, have this day been sold to La Brecque Company, Incorporated, and notice of the cancellation of your said lease is hereby given you pursuant to that clause of your lease readingas follows: 'It is further understood and agreed between the parties hereto that a sale of the property by the party of the first part shall terminate this lease upon six months' written notice to the party of the second part, and in lieu of compensation it is hereby agreed that the rent shall be waived during the six months' notice to vacate.'
"P. Ballantine & Sons,
"F. T. Frelinghuysen, President.
"Attest: Henry P. Lindsley, Secretary La Brecque Company, Inc., by Louis C. La Brecque, President.
"Attest: Edmund. J. La Brecque, Secretary."
The bill alleges that complainant refused to surrender possession, whereupon proceedings were instituted by defendant in the Second district court of Newark under the provisions of section 107 et seq. of the District Court Act (2 C. S. N. J. p. 1988), which resulted in a judgment for possession. Application was made to the Chief Justice for a writ of certiorari, which application was denied. The Chief Justice sanctioned the presentation of an application for a writ to the Supreme Court, which opens for the June term on June 3d, but declined to grant an order to show cause or a stay. Application was made to the judge of the Second district court for a stay, which was denied. Under the statute and practice in the district court a warrant of possession may issue at any time, and, if it is permitted to be executed, complainant will be forced to vacate the premises.
Complainant alleges that the notice given him and set forth as above is not sufficient, under the clause of the lease, to terminate the tenancy, and that he is still entitled to possession of the premises under the lease. He has built up a good will worth in the neighborhood of $500,000. He is under contract with many individuals and interests for the storage of goods, and goods under such agreements are in storage aggregating in value upwards of $1,000,000. He cannot find another place to locate. If he is forced to surrender possession of the premises, not only will he suffer loss or damage arising out of injury to his good will and loss occasioned by inability to secure business and carry out contracts, but, because of breach of contract with his customers, he will be exposed to rights of action by them against him. It is impossible to calculate the loss. Before the consequential damages can be determined it will be necessary for him to wait until actions brought by customers against him shall be determined. Defendant is a corporation of New York, and is not able to respond in damages. His remedy by action in trespass as provided by section 113 of the aforesaid act (2 C. S. N. J. p. 1990) is wholly inadequate. If in an action for trespass he is entitled to recover consequential damages, such damages cannot, with any degree of certainty, be fixed.
Upon the filing of the bill an order to show cause with ad interim restraint was allowed returnable June 3, 1919. Under permission given by the order a motion is now made by defendant to vacate it, and a motion is also made to strike the bill. I will consider the case as upon a motion to strike the bill and argument upon the return of the order to show cause. It is objected that this court has no jurisdiction, that the defendant has a judgment at law for possession, and that the statute (section 113) relegates complainant, if the judgment at law be erroneous, to an action in trespass. Section 113 reads as follows:
"Proceedings had by virtue of the 107th section of this act shall not be appealed from nor removed by certiorari, but the landlord shall remain liable in an action of trespass for any unlawful proceedings under this act."
The specific prohibition of the statute is against appeal or certiorari. Certiorari will, however, lie if the district court have no jurisdiction. The effect of the statute is to permit a party who has obtained a judgment for possession to secure immediate possession, but he still remains liable in an action of trespass. The legislative intent was to permit possession of property to be physically secured in such a proceeding, but not in this summary way, to determine any right. The legal and equitable rights of the parties remain the same after the judgment for possession as before.
Without considering whether the Legislature could deprive this court of any jurisdiction it might otherwise exercise, it seems to me that the Legislature has not attempted to curtail the jurisdiction of this court. The statute does not, in terms, forbid the intervention of this court. It does in terms provide that the landlord shall remain liable in an action in trespass. The landlord being liable in trespass, it seems to me that, where the remedy at law in trespass is wholly ininadequate, the landlord remains liable to be enjoined by this court from committing the trespass. I think the case must be determined precisely as if the proceedings in the district court and an application for the writ of certiorari had not taken place. The denial of the writ of certiorari does not add to the force of the judgment in the district court; if the writ had been allowed and argued, and dismissed upon the merits, the judgment of the district court would have had no other effect than as provided for by the act.
This, then, is a case in which a person alleging himself to be legally entitled to possession of real estate endeavors to prevent a person alleging the legal right to possession from ousting him. There is no equitable right involved, and jurisdiction must be based wholly upon the inadequacy of the remedy at law. That this court has jurisdictionin all cases in which the remedy at law is inadequate, whether involving the right of possession to real estate or not, is, I think, settled. Hart v. Leonard, 42 N. J. Eq. 416, 7 Atl. 865, sixth subdivision; Public Service Corporation v. Westlield, 82 N. J. Eq. 43, 47, 91 Atl. 738, affirmed 82 N. J. Eq. 662, 91 Atl. 740; Kiernan v. Jersey City, 76 N. J. Eq. 114, 74 Atl. 139; Allen v. Distillers' Co., 87 N. J. Eq. 531, 100 Atl. 620; Renwick v. Hay, 106 atl. 547, not yet officially reported. In a recent case in the Court of Errors and Appeals (riedden v. BiermanEverett Foundry Co., 106 Atl. 812) it appeared that complainant sought an injunction to prevent a threatened interference by respondents with her use of a siding. The Vice Chancellor had dismissed the bill. While holding against complainant on the merits, he also stated in his conclusions that, if the complainant had the right she said she had, it was a legal right, whose nature and extent could have, at least in the first instance, been determined only in a court of law. This point was argued in the Court of Appeals. That court, without referring to it, reversed the Vice Chancellor and granted the injunction. It seems to me that the statement of the loss which would be suffered by complainant indicates quite clearly that a remedy at law is wholly inadequate, and that this court has jurisdiction. Defendant insists that its damages, by being kept out of possession, cannot be compensated for in any action at law.
Before complainant can succeed he. must show that he had a legal right to the continued possession of the property. It is immaterial, I think, in this court whether the clause in the lease under which possession is claimed by defendant be termed a condition or a limitation, however important the determination of that question may be in order to settle the jurisdiction of the district court. If the complainant's term has expired by limitation, or if the defendant is entitled to re-enter for breach of condition, complainant is not entitled to relief here. The sole question is whether the notice given was a notice in pursuance of the clause. I am quite clear that it was. The lease provided that the landlord might terminate it upon a sale upon six months' written notice, and it was agreed that in lieu of compensation rent should be waived during the six months' notice to vacate. The notice served on October 1st specifically referred to the sale and gave notice of the cancellation of the lease and included a copy of the clause relied on. The argument that complainant did not know whether to consider this notice a notice to vacate or whether he might remain liable for the rent after the termination of the six months' period is, I think, specious. When he tendered his rent month by month during the period of six months after October 1st it was refused. There is no question in my mind but that he was fully advised by this notice that defendant had elected to terminate the lease. I think his right of possession ceased on May 1st. This construction of the notice is in accord with the construction put upon it by the judge of the district court, and, I am informed, by the Chief Justice.
The order to show cause will be dissolved, the restraint vacated, and the motion to strike the bill granted. I need hardly say that I have not rested jurisdiction upon the inability of complainant to secure relief on appeal or certiorari because of the law courts not being in session. Clark v. Board of Education of Bayonne, 76 N. J. Eq. 326, 74 Atl. 319, 25 L. R. A. (N. S.) 827, 139 Am. St. Rep. 763.