Ivy Hill Park Section Five, Inc. v. Handa

297 A.2d 201, 121 N.J. Super. 366

• Court: New Jersey Superior Court Appellate Division
• Decided: November 28, 1972
• Status: Published

Opinion

121 N.J. Super. 366 (1972) 297 A.2d 201

IVY HILL PARK SECTION FIVE, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
v.
NARENDRA HANDA AND SAUNDRA HANDA, HIS WIFE, DEFENDANTS-RESPONDENTS.

Superior Court of New Jersey, Appellate Division.

Argued November 8, 1972. Decided November 28, 1972.

Before Judges LABRECQUE, KOLOVSKY and MATTHEWS.

Mr. Robert Diamond argued the cause for appellant (Messrs. Diamond and Pitman, attorneys).

Mr. Stanley Varon argued the cause for respondents (Newark Legal Services Project, attorneys; Mr. Walter M. Mitchell, on the brief).

PER CURIAM.

Plaintiff instituted this summary action for recovery of premises under N.J.S.A. 2A:18-53, subd. b, alleging that defendants held over after a default in payment of rent. The trial judge entered a judgment of possession in favor of plaintiff, but ordered that issuance of the warrant of removal be stayed for approximately 2 1/2 months, until March 1, 1972. At oral argument we were informed that defendant Saundra Handa was still in possession of the premises.

Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant for possession for approximately 2 1/2 months. Its basis for appeal is that the trial court exceeded its jurisdiction in its delay of the warrant of removal. We agree that a jurisdictional question is raised since it is contended that the provisions of the controlling statute were not complied with. Leachman v. Kite, 133 N.J.L. 240, 241 (Sup. Ct. 1945).

The authority granted to a trial judge under N.J.S.A. 2A:42-10.6 to stay the issuance of a warrant for possession may be exercised under the plain language of the section only if the stay is conditioned on the payment of past and future rent due to the landlord. Of course, if the rent is paid the action for dispossess would terminate. Saveriano v. Saracco, 97 N.J. Super. 43 (App. Div. 1967).

So much of the judgment of the Essex County District Court as stayed the issuance of the warrant for possession is reversed.