Fasso v. Senerchia , 24 N.J. Misc. 12 ( 1945 )

Parker, J.

This is an action of certiorari argued before the undersigned sitting as a single Justice of the Supreme Court pursuant to statute. • The writ brings up a judgment of dispossession in a landlord and tenant case, entered in the District Court of the Essex County Judicial District on October 22d, 1945.

The attack on this judgment of dispossession is in substance and effect that the landlord’s original affidavit is defective on its face because it alleges that the tenancy originated by agreement between the parties the 1st day of July, 1945, the tenancy to be from month to month, but that the landlords notice to terminate that tenancy was dated and served on June 28th, 1945, three days before the relation of landlord and tenant was created.

ISTotwithstanding this situation, the District Court Judge seems to have held—at least by implication—that such notice was a valid notice and that the tenancy thereby was terminated on October 1st, 1945.

I am unable to take this view. It is my judgment that if a notice to terminate a tenancy is to be given by either party to the other it should be given at some time during the period when the tenancy is actually in effect and not at a time when no relation of landlord and tenant exists, and apparently before it has begun to exist.

This view leads to a judgment setting aside the judgment of dispossession of the District Court, with costs.