On appeal from the First District Court of Newark.
For the appellant, Rothbard, Greenstone, Harris & Talisman (Samuel L. Rothbard, of counsel).
For the respondent, George R. Sommer.
Before Justices Parker and Colie.
The opinion of the court was delivered by
COLIE, J. Plaintiff, a tenant, sued the defendant landlord to recover the sum of $100. The suit was grounded upon the provisions of 50 U.S.C.A. App., § 925 (e), commonly known as the "Emergency Price Control Act," which, though since amended, then read (56 Stat. 33):
"If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may bring an action for $50 or treble the amount by
which the consideration exceeded the applicable maximum price, whichever is the greater, plus reasonable attorney's fees and costs as determined by the court. For the purposes of this section, the payment or receipt of rent for defense-area housing accommodations shall be deemed the buying and selling of a commodity, as the case may be. If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer is not entitled to bring suit or action under this subsection, the Administrator may bring such action under this subsection on behalf of the United States. Any suit or action under this subsection may be brought in any court of competent jurisdiction, and shall be instituted within one year after delivery is completed or rent paid. The provisions of this subsection shall not take effect until after the expiration of six months from the date of enactment of this act."
In pursuance of his duty, the administrator, Mr. Leon Henderson, formulated "Maximum Rent Regulation No. 28." The effect of the regulation was to fix the maximum rental for the premises here involved at $25 per month. The defendant-landlord, however, rented the premises to the plaintiff-tenant at $28 per month and the latter rental was received by her for the months of July and August, 1942. This was clearly an overcharge to the extent of $6 for the two months involved. However, it is undisputed that the $6 overcharge was refunded to the tenant prior to the commencement of the present suit. The District Court Judge in this situation of the evidence entered a judgment of nonsuit and the present appeal is from that judgment.
The question for decision is whether the repayment by the landlord of the overpayments of rent is a defense to a subsequent action by the tenant to recover the sum of $50 for each overpayment, together with reasonable attorney's fees and costs. There is no reported decision upon this point in New Jersey but we are impressed with the logic and reasoning of the opinion in Zwang v. A. & P. Food Stores, 46 N.Y. Supp. (2 d Series) 747. In that case it was said:
"It is not a defense * * * that before the commencement of the civil action, the defendant, ...