The question, as I see it, is not whether the District Court had statutory jurisdiction summarily to try certain specifically stated classes of landlord and tenant cases. That is not debatable. R.S. 3:32-265. Rather is the question whether that jurisdiction was properly invoked. What, therefore, is it that brings into play the essential factors dispositive of the existence vel non of jurisdiction as set down in Munday v.Vail, 34 N.J.L. 418, followed in Sbrolla v. Hess, 133Id. 71; 43 Atl. Rep. (2d) 498, and held to be controlling in the case at bar. The answer is that those factors invoke the statutory jurisdiction only when the legal evidence establishes the particular statutory ground asserted and upon which ground the affidavit is based.
It is not a good answer to say, as it is in effect said, that no attack was made upon the affidavit. For prosecutrix challenges here, as she did below, the jurisdiction of the court. Such a challenge necessarily calls for a determination of the validity of the affidavit and the efficacy of the supporting proofs. This is so because the exercise of the statutory jurisdiction has for its source the affirmative finding that the affidavit and the proofs in support thereof are proper. For analogy compareBrandon v. Montclair, 125 N.J.L. 367; 15 Atl. Rep. (2d) 598; Green v. Board of Commissioners of Newark, 131 N.J.L. 336; 36 Atl. Rep. (2d) 610; National Lumber Products Co. v.Ponzio, 133 N.J.L. 95, 101; 42 Atl. Rep. (2d) 753.
Here the return to the writ, under the hand and seal of the trial judge, discloses, among other things, that motions were made for prosecutrix at the end of respondent's case, and at the end of the entire case, to dismiss the proceedings on the ground that the court was without jurisdiction to enter judgment for possession on the alleged ground of expiration of term. These motions were made to rest upon the uncontradicted proof that respondent had accepted from prosecutrix, contrary to federal regulations, excess rent in the sum of $177.08, and that such excess rent covered a period beyond the expiration date of the letting as set down in the affidavit. In such circumstances, it is argued, and I think correctly so, *Page 243 that the holding over by prosecutrix was legally non tortious, without which the proceedings could not have been maintained, and created a periodic tenancy of the month to month variety, a tenancy which in any event extended the alleged expiration date set forth in the affidavit. Hence the court was without jurisdiction.
I vote to reverse.