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Horn v. Burgi

New Jersey Supreme Court


Decided: October 31, 1945.

WHYETT VAN HORN AND MILDRED H. VAN HORN, HIS WIFE, RESPONDENTS,
v.
HANNAH BURGI AND WILLIAM BENZ, APPELLANTS

On appeal from the District Court.

For the appellants, Frank Pascarella.

For the respondents, Charles W. Weleck.

Before Justices Case, Bodine and Perskie.

Bodine

[133 NJL Page 372]

The opinion of the court was delivered by

BODINE, J. This case grows out of the Emergency Price Control Act, 50 U.S.C.A. App., ยง 925 (e). The plaintiffs below, under an agreed state of the case, rented property from the defendants. The rent paid was $45 a month, while the legal rent was $35 a month. There were two counts: one to recover the $50 a month fixed by the statute. A count also sought to recover the excess rent paid.

The plaintiffs below entered a voluntary nonsuit as to this latter claim. It was moved while the District Court Judge was awaiting briefs and a decision had not been reached. The case was tried without a jury.

We think if the motion was granted costs should have been imposed. The motion was made without notice, a somewhat doubtful procedure. The defendants were not harmed by the occurrence.

The District Court had jurisdiction to retain the action under the federal statute for the $50 fixed by law for the overpayment or charge. Beasley v. Gottlieb, 131 N.J.L. 117; Carmelly v. Hanson, 133 Id. 180.

1. The nonsuit cured any difficulty in too large a demand.

2. The case comes before us upon an agreed state of the case, so we cannot tell whether the court received improper evidence as to the price ceiling. If so, the mistake was cured by the agreement of the parties as to the rent charged and the legal rent which should have been charged.

3. The nonsuit should have been granted in the action mentioned. If granted, on the defendants' motion it would have carried costs. The only mistake was in permitting an ex parte application for a voluntary nonsuit. An allowance of costs will cure this error.

4. The plaintiffs, in other respects, were entitled to a judgment.

The case comes to us without printing. The briefs do not comply with the rules as to originals. Chief Justice Beasley said in Gregory v. Wilson, 36 N.J.L. 315 (at p. 323): "Other cases having the same bearing might be cited, but in these days, when legal knowledge is so dearly acquired, and legal learning is so cheaply displayed, a voluminous citation of

[133 NJL Page 373]

authorities is apt to look like a petit larceny on the digests."

We think it unnecessary to examine the voluminous cases cited by counsel except to say that most of them are not applicable.

This case is remanded to the District Court for action not inconsistent with this opinion, but without costs here to either side.

19451031


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