Jenkins v. Kaplan

• Citation: 148 A.2d 33,53 N.J.Super. 582
• Decision Date: 26 January 1959
• Docket Number: No. A--624,A--624
• Parties: Glory JENKINS, Plaintiff-Appellant, v. Yetta KAPLAN, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 582

53 N.J.Super. 582

148 A.2d 33

Glory JENKINS, Plaintiff-Appellant, v. Yetta KAPLAN, Defendant-Respondent.

No. A--624.

Superior Court of New Jersey Appellate Division.

Argued Nov. 24, 1958.

Decided Jan. 26, 1959.

George Rothstein, Union City, for plaintiff-appellant.

Edward J. Lynch, Union City, for defendant-respondent (Cyril J. McCauley, Union City, attorney).

Before Judges SCHETTINO, HALL and GAULKIN.

The opinion of the court was delivered by

GAULKIN, J.A.D.

This is an action by a tenant for restitution, on the theory of unjust enrichment, of rents paid to defendant landlord from July 1, 1956 to August 1, 1957 in excess of the lawful maximum fixed by ordinances of Union City adopted under the authority of L.1956, c. 146, N.J.S. 2A:42--56, N.J.S.A. The Hudson County District Court entered judgment for defendant, after trial without a jury, and plaintiff appeals.

An earlier phase of this litigation was before this court in Jenkins v. Kaplan, 50 N.J.Super. 274, 141 A.2d 802 (App.Div.1958). In that opinion this court said (50 N.J.Super. at page 282, 141 A.2d at page 806):

'Defendant argues that the complaint should have been dismissed with finality because it does not appear therefrom that the payments by the plaintiff were not voluntary. The law in this regard is clear. The payments were not voluntary if plaintiffs were under compulsion because of unavailability of other housing accommodations. Brinkmann v. Urban Realty Co., Inc., supra (10 N.J. (113) at page 120, 89 A.2d (394) at page 398).'

In the Brinkmann case, the Supreme Court said (10 N.J. 113 at pages 119--120, 89 A.2d 394 at page 397 (emphasis ours)):

'* * * This exaction resulted in the unjust enrichment of the defendants at the plaintiffs' expense and, special defenses aside, entitles the plaintiffs to restitution under settled equitable principles cognizable in the lower court. * * * As a special defense the defendants assert that the plaintiffs' payments were voluntary and as such not recoverable. Buschbaum v. Barron, 1 N.J.Super. 4, 7, 61 A.2d 512 (App.Div.1948); Mee v. Town of Montclair, 84 N.J.L. 400, 401, 86 A. 261 (E. & A.1913). If the plaintiffs were aware of all of the true facts And without 'compulsion of the circumstances' (McGregor v. Erie Railway Co., supra (35 N.J.L. 89)) entered into the transaction, then the doctrine sought to be invoked by the defendants would presumably bar the plaintiffs' recovery. If, however, as presently appears, they were unaware of the true facts Or had no practical choice but to participate because of the unavailability of other housing accommodations, then the doctrine would presumably be inapplicable.'

It is therefore the law of this case (United and Globe Rubber Mfg. Co. of Trenton v. Conard, 82 N.J.L. 680, 82 A. 860 (E. & A.1912)) that the payments here made 'resulted in the unjust enrichment of the defendants at the plaintiffs' expense and, special defenses aside, entitles the plaintiffs to restitution'; that plaintiff may not recover if she was 'aware of all of the true facts And without 'compulsion of the circumstances' * * * entered into the transaction'; but if she was 'unaware of the true facts Or had no practical choice but to (pay) because of the unavailability of other housing accommodations' the payments would not be deemed voluntary.

After the decision in 50 N.J.Super. 274, 141 A.2d 802, supra, the case was tried on its merits. At that trial it was stipulated that the payments had been in excess of the maximum allowed by law. Therefore, the only questions before the trial court were whether they were voluntary and, if not, whether there were any other 'special defenses' which barred plaintiff's recovery.

Since the testimony was not taken down stenographically, the record has been settled by the trial court pursuant to R.R. 1:6--3; and since the case was tried without a jury the court filed its findings of fact and conclusions of law pursuant to R.R. 7:16--3.

Plaintiff contends in this appeal that (1) the record shows that the payments were not voluntary, and (2) that the trial court erred (to quote appellant's brief) 'in basing its judgment on general equitable principles rather than on legal grounds.'

From the record we learn that in 1949 plaintiff and her husband moved into the apartment in question. There is no proof that they were under any compulsion to move from the premises which they had theretofore occupied. In fact, they sought the apartment in question because it was larger and had more privacy. Mr. Jenkins agreed to pay $52.50 per month for the apartment. Called as a witness by defendant and he testified that he had known that the previous tenant had paid only $45 per month, but he never knew that $45 was the 'proper registered rent.'

In 1952 Mr. Jenkins left plaintiff and their child, but until December of that year he continued to pay the rent. However, in December 1952 he was ordered to pay his wife a sum weekly for support and from that time on she paid the rent herself.

Soon after the separation plaintiff's mother came to live with her. In August 1953, while her mother was still living with her, plaintiff asked the defendant for permission to have her brother move in also. Plaintiff testified that defendant refused to give such permission unless she paid $10 per month for rent, or $62.50; and that, consequently, she agreed to pay that sum. There is no proof that there was any 'compulsion of circumstances' upon hr which made it necessary for her to have her brother move in. Defendant's witnesses, on the other hand, testified that plaintiff had not asked for such permission, but gratuitously had paid $10 per month more because her brother had already moved in, and because Mr. Kaplan was ill and in the hospital. (Mr. Kaplan died before the institution of this action.)

The trial court appears to have found that the plaintiff did pay the $10 increase, albeit willingly, in exchange for the permission which she did ask for and which defendant did grant. The court said, in its findings of fact and conclusions of law (emphasis ours):

'(f) That the agreement to increase the rent from $52.50 per month to $62.50 per month * * * when plaintiff's brother, an adult, not a member of a plaintiff's immediate family, Was granted permission to reside and use the floor as part of the plaintiff's household, Was in all respects voluntary in nature and not actuated by any fraud or subterfuge of existing rent laws on the part of the defendant or her deceased husband. * * * The necessity, if any, did not pertain to a member of plaintiff's immediate family. The defendant, or Mr. Kaplan (deceased husband) was not legally enjoined or precluded from denying plaintiff permission to allow her brother (an adult) to make use of and reside in the premises of the plaintiff's household.'

There is nothing in the record to support the court's finding that defendant was not 'precluded from denying plaintiff permission to allow her brother * * * to reside in the premises of the plaintiff's household.' There is no evidence in the record of the terms of the letting, other than the rent; nothing, therefore, to indicate that the landlord did have the right to prevent plaintiff's brother from living in the apartment. In the absence of contractual restrictions, a tenant may sublet in whole or in part. 51 C.J.S. Landlord and Tenant § 31, p. 538; S. M. Braunstein, Inc. v. McGrory Stores Corp., 93 N.J.Eq. 419, 420, 116 A. 707, 23 A.L.R. 133 (E. & A.1922).

It is true that the ordinances, reflecting the underlying statute, permitted an increase when 'The tenant has increased the number of sub-tenants or roomers in the dwelling unit rented from the landlord.' However, such an increase was invalid unless and until it was approved by the City Rent Control Director 'upon an application by the landlord, on notice to the tenant, and upon a hearing * * *' We hold, therefore, that it was illegal for the landlord to take the $10...