Lipinski v. Frank, 428.
| Decision Date | 06 February 1934 |
| Docket Number | No. 428.,428. |
| Citation | 170 A. 608 |
| Parties | LIPINSKI v. FRANK et al. |
| Court | New Jersey Supreme Court |
Appeal from Second District Court, Essex County.
Action by George Lipinski against John Frank and another. Judgment for plaintiff, and defendants appeal.
Affirmed.
Argued October term, 1933, before PARKER, LLOYD, and PERSKIE, JJ.
Nathan H. Berger, of Newark, for appellants.
Harry Pechenik, of Newark (Seymour A. Emmerglick, of Newark, of counsel), for respondent.
This was an action in the district court by a tenant against his landlords to recover damages for eviction from the demised premises and damages for an unlawful distraint in that it was too great and unreasonable. There were two counts in the state of demand, and the trial judge, sitting without a jury, found for the plaintiff on both and awarded damages in the sum of $100.
The distraint was for a month's rent of $45 upon all of the goods upon the premises. The plaintiff was ordered off the property under threat of putting him out bodily, the place padlocked, and plaintiff prevented from reentering. Plaintiff offered to pay the rent but not the costs incurred. This was refused, and the goods were sold for $50. The fair market value of the goods according to the proofs was $450.
Section 1 of the act "concerning distresses," 2 Comp. St. 1910, p. 1939, § 1, provides "that all distresses made or taken, or to be made or taken for any cause whatsoever, shall be reasonable and not too great; and if any person shall take great and unreasonable distress or distresses, he or she shall answer the damages to the party aggrieved."
We think the evidence justified a finding in favor of the plaintiff that the distraint was "great and unreasonable," and that the landlord would therefore be without right in impounding the goods and locking the plaintiff out of his property. This being true, it would follow that there was not only the unlawful act of impounding, but that the consequent padlocking of the property might properly justify a holding that there had been an eviction.
The judgment is affirmed, with costs.
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...of the tenant's premises has long existed as an accepted method of distraint. See, e.g., Elkman v. Rovner, supra; Lipinski v. Frank, 12 N.J.Misc. 174, 170 A. 608 (1934). No notice or hearing is required before distraint, but a distraining party is liable in damages for an "unreasonable, exc......
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...and for any such taking, the distraining party shall be liable in damages to the party aggrieved.' The case of Lipinski v. Frank, 170 A. 608, 12 N.J.Misc. 174 (Sup.Ct.1934), is cited by both parties as the only case in New Jersey discovered by counsel's research. We fail to see that the Lip......
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...I have concluded the value of the said property was about $6,300 which would appear to make the distraint excessive. See Lipinski v. Frank, 170 A. 608, 12 N.J.Misc. 174. The sale of all of the machinery and equipment for about one-tenth of their value is at least a constructive fraud under ......
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Elkman v. Rovner
...damages against one who breaches the ‘pound’ or rescues the property ‘distrained’ and ‘impounded.’ Our Supreme Court, in Lipinski v. Frank, 170 A. 608, 12 N.J.Misc. 174, regarded the distinction. It held a ‘distraint’ to have been great and unreasonable and said the landlord would therefore......