New York & New Jersey Telephone Co. v. De Gray , 65 N.J.L. 156 ( 1900 )

The opinion of the court was delivered by

Collins, J.

This writ removes, in limine, on challenge of ■ jurisdiction, a proceeding brought in the District Court of Paterson, by a landlord.to dispossess his tenant for holding over after expiration of term. Except in the particular hereinafter mentioned, the reasons assigned for lack of jurisdiction all depend upon facts, dehors the return, attempted to-be established by affidavits taken in this cause. We cannot inquire into facts, but must take the case as the landlord! presents it to be admitted. Roberts v. McPherson, 33 Vroom 165; affirmed, 34 Vroom 352. Thus cpnsidered, but one debatable question arises. The landlord’s affidavit shows that the affiant’s lease to the tenant was in writing and was joined in by William De Gray. It is deposed, however, that William De Gray’s only interest in the demised premises was the ownership in severalty of land not included in the proceeding to dispossess; and that the land embraced in that proceeding was, at the time of the demise, and is now, owned in severalty by the affiant. The question therefore is this: If the owners-in severalty of separate tracts of land jointly lease them, may one of them, as landlord, alone institute and sustain a summary proceeding to dispossess the tenant from his-tract, for a holding over after the expiration of the term? We think he may. The statutes authorizing summary dispossession, are broad enough to warrant such.an individual proceeding, and there seems no reason for any narrower construction. Indeed, we think that to be the correct practice. A right to possession compels recovery in ejectment. The summary proceeding fo.r possession takes the place of ejectment, and only.because the statutes authorizing it make jurisdiction depend upon the relation of landlord and tenant having subsisted is it necessary to allege . or prove that relation. This. jurisdictional •requisite having been met, the relative rights of the parties ¡should be asserted and secured as they, in fact, exist.

Let the writ be dismissed, with costs, and let the cause be remitted to the District Court of Paterson, to be therein pro•ceeded with according to law.