Mckean v. Hillman

• Decision Date: 24 March 1949
• Docket Number: No. A-67-48.,A-67-48.
• Citation: 64 A.2d 899
• Parties: McKEAN v. HILLMAN et al.
• Court: New Jersey Superior Court

64 A.2d 899

McKEAN

v.HILLMAN et al.

No. A-67-48.

Superior Court of New Jersey, Appellate Division, Part A.

March 24, 1949.

Appeal from Passaic County Court.

Action to recover for rental overcharges in violation of the Emergency Price Control Act by Grant S. McKean against Nathan Hillman and another, administrators of the estate of Frances Hillman, deceased. From the judgment, plaintiff appeals.

Affirmed.

Before JACOBS, Senior Judge, and EASTWOOD and BIGELOW, JJ.

George S. Grabow and M. Metz Cohn, both of Paterson, for plaintiff-appellant.

Isadore Waks and Harry L. Schneider, both of Paterson, for defendants-respondents.

JACOBS, Senior Judge.

The plaintiff appeals from a judgment of the Passaic County Court dismissing his complaint to recover because of rental overcharges in violation of the Emergency Price Control Act.

The complaint, filed on March 5, 1948, alleges that the plaintiff rented premises at 72 Prospect street, Paterson, from Frances Hillman who demanded and received rental therefor in excess of the maximum prescribed under the Price Control Act, 50 U.S.C.A.Appendix, s 901 et seq., and that Frances Hillman died on November 4, 1947. It seeks, in separate counts, recovery of treble damages, the applicable statutory minimum of fifty dollars, and the actual overcharges from the defendants, administrators of the estate of Frances Hillman. The defendants moved to strike the complaint because plaintiff's claim was penal in nature and did not survive the death of Frances Hillman. The County Court, without opinion, entered an order on September 27, 1948, striking the complaint on the ground that it failed to ‘show a cause of action in favor of plaintiff against the defendants.’

In Zuest v. Ingra, Err. & App. 1946, 134 N.J.L. 15, 45 A.2d 810, the court held that an action by a tenant to recover under the Price Control Act because of rental overcharges was penal in nature. The Court of Errors and Appeals accepted the view that charging more than the prescribed maximum was made a ‘public wrong’ rather than a wrong to the individual and that the tenant's right of action was provided for by Congress as a penalty in aid of the enforcement of the Act. In Bowles v. Farmers National Bank of Lebanon, Ky., 6 Cir., 1945, 147 F.2d 425, the court, after expressing the established rule that the survival or abatement of penal actions provided for by Act of Congress rests on federal law, held that the action before it to recover under the Price Control Act because of overcharges, being penal, abated upon the death of the defendant. The decisions in Porter v. Montgomery, 3 Cir., 1947, 163 F.2d 211 and Bishop v. Rosin, D.C.Mich.1946, 69 F.Supp. 915, are of similar effect and nothing to the contrary dealing with the Price Control Act has been brought to our attention. Tyler v. Dixson, D.C.Mun.App.1948, 57 A.2d 648, where the court held that a tenant's action under the District of Columbia Emergency Rent Act survived the landlord's death, is not pertinent since the action thereunder had been construed to be not penal and the court rested its determination on a specific provision of the District of Columbia Code to the effect that all actions shall survive except causes for ‘injury to the person or to the reputation’ Section 12-101; there is no similar statutory provision bearing on a tenant's action, construed in the Zuest case to be penal, under the Price Control Act. We consider the doctrines expressed in the Zuest and Bowles cases to be controlling and...