Schwartz v. Dell'osso.

• Decision Date: 27 April 1945
• Citation: 42 A.2d 306
• Parties: SCHWARTZ et al. v. DELL'OSSO.
• Court: New Jersey Circuit Court

42 A.2d 306

SCHWARTZ et al.

v.DELL'OSSO.

Circuit Court of New Jersey, Essex County.

April 27, 1945.

Action by Albert Schwartz and another against Marietta Dell'Osso to recover for overcharges of rent under Emergency Price Control Act. On defendant's motion to strike part of amended complaint.

Motion granted in accordance with opinion.

Harry Levin, of Newark, for plaintiffs.

Joseph A. D'Alessio, of Newark, for defendant.

CAFFREY, Judge.

This is a motion to strike part of an amended complaint. The original complaint filed in this cause, under date of April 26, 1944, contains sixteen counts and the plaintiffs sought to recover the amount of $50 under each count, alleging a violation of the Emergency Price Control Act, beginning as of March 1942 until July 1943.

That part of the statute under which plaintiffs pursued their remedy and which is pertinent, so far as this case is concerned, provides generally that any action may be brought in any court of competent jurisdiction ‘and shall be instituted within one year after * * * rent is paid.’

All of the demands were not justified due to the limitations mentioned in Section 205(e), 56 Stat. 33, 50 U.S.C.A. Appendix § 925(e). The plaintiffs, evidently perceiving their difficulty, obtained an order from Judge William A. Smith, on the 31st of May, 1944 with respect to the first thirteen counts, with leave to the defendant to renew objection to the amended complaint.

Briefly stated, the basis of the claim is this; that on March 1, 1942 the maximum rental provided under the Emergency Price Control Act for the premises in question was $50 a month and that, in violation of the regulations, the landlord charged $53 a month.

They now seek the return of $3 excess rent paid for ten months on the specific ground that the landlord's act was illegal and, regardless of the procedure and the remedy provided for under the Emergency Price Control Act, supplemented by Regulation 28 of the Office of Price Administration, the landlord was unjustly enriched to the extent of the $3 rental charge for the ten months.

The questions raised by this motion are these:

First, assuming that the $3 overcharge is above the rental permitted as of March 1, 1942, may the plaintiffs recover these overcharges as a matter of right under the common law?

Second, should Section 205(e) providing for treble damages or for the recovery of $50 for each violation, depending upon which amount is the greater, be disregarded so as to enable the plaintiffs to sue for each overcharge in an action in assumpsit?

There is some conflict of authority as to whether the statute is penal or remedial. However, that question has been settled in New Jersey by force of the opinion of Mr. Justice Case in Beasley v. Gottlieb, 131 N.J.L. 117, 35 A.2d 49, wherein it was held that the suit ‘is a suit of a ‘civil’ nature, remedial of a private wrong and therefore not ‘penal’, but is a private suit for a private wrong * * *.'

With respect to remedial statutes, our Supreme Court held in West Jersey & Seashore R. Co. v. Board of Public Utility Com'rs, 8 N.J.Misc. 899, 152 A. 378, that liberality in construction of a remedial statute cannot be extended to a point of reading into the statute powers which its plain language does not give.

Taking the pleaded facts and the analysis of the statute by Mr. Justice Case that a suit for an overcharge is a private wrong, it has to be determined whether or not the payment of the $3 overcharge is in itself a ‘private wrong’ justifying the plaintiff's suit in assumpsit for the recovery of the alleged excessive charges of $3 a month.

There seems to be no dispute that the plaintiffs paid the defendant the rent exacted by the defendant voluntarily and received full value in return. There is no suggestion of fraud or overpayment above the agreed rental. It is clear in this posture of the case that, without the enactment of the Emergency Price Control Act, the plaintiffs would not have a semblance of a right. Therefore, it follows whatever right the plaintiffs have must spring from the Act itself. The Act provides the right and also the remedy.

Much stress has been placed on the doctrine that this statute, being remedial, must be given a liberal construction in order to effectuate the purpose of the act. It is also argued by the plaintiffs that they have a common-law right and such right may be asserted through the medium of this statute, although admittedly only part of it can be utilized. Of course, there is no question about the rule that a remedial statute is entitled to receive a liberal construction, Haggerty v. Central R. Co., 31 N.J.L. 349; State...