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Frayne v. Bahto

Decided: March 10, 1948.

JOSEPH A. FRAYNE, PLAINTIFF-APPELLANT,
v.
MASUD BAHTO, DEFENDANT-RESPONDENT



On appeal from the District Court of the Essex County Judicial District.

For the appellant, Mortimer Katz.

For the respondent, William F. Nies.

Before Justices Bodine, Heher and Wachenfeld.

Heher

The opinion of the court was delivered by

HEHER, J. The action is in fraud and deceit.

The state of demand charges the procurement by the defendant landlord from the Federal Office of Price Administration of "a certificate authorizing eviction" of the plaintiff tenant from the demised apartment premises on a fraudulent representation that the landlord "required" the "apartment for himself."

It was alleged that "pursuant to the notice served upon him to remove from the premises upon the ground" that the Price Administration bureau "had authorized this eviction and that" the landlord "required the apartment for himself," the plaintiff tenant "removed from" the apartment; that the landlord "did not require" the "apartment for himself, and in fact, up to the date" of the commencement of the action, had "not occupied the apartment but" permitted "the same to remain vacant," and the representation was false and fraudulent; and that as a result of the fraud thus practiced, the plaintiff tenant "was subjected to several court proceedings" and was put to the expense of "storage, moving," and the like, and "was forced to rent an apartment in a hotel at a considerably higher rental" than that paid for the premises vacated.

The issue was tried by the judge without a jury; and there was judgment for defendant.

The agreed state of the case reveals no error in matter of law. It sets forth these findings of fact: On September 27th, 1945, the Price Administration bureau issued to the defendant landlord a certificate authorizing him "to proceed to evict" the plaintiff tenant "in accordance with the local

law * * * based upon the fact" that the landlord "had alleged that he needed the premises for self-occupancy." On March 29th, 1946, the plaintiff tenant "was served with a customary thirty days' notice to vacate and thereafter an action to dispossess was brought in the Orange District Court." The parties to the action "appeared before" the court on May 22d following, "and a judgment for possession was entered by the plaintiff herein consenting to such judgment for possession and by the landlord agreeing that no warrant be issued for one month;" and "Thereafter," the tenant "then voluntarily removed from said premises and no warrant issued." The defendant landlord "permitted the said premises to remain vacant until November 1st, 1946, when" he "sold the building." It is further certified that a realtor, sworn as a witness at plaintiff's instance, testified that defendant "had solicited his services on March 13th, 1946, and listed the property with him for sale at that time;" that defendant testified that "the reason that he did not occupy the premises for himself and his family was because his wife became ill and on a physician's advice they remained in the premises which they were then occupying;" and that there was a finding merely "of no cause for action," without a statement of the grounds of the decision.

The specifications of error, or such of them as are legally sufficient, raise only the question of the existence of evidence to sustain the judgment; ...


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