Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.
Defendants appeal from a judgment entered against them by the District Court for the Second Judicial District of the County of Union, sitting without a jury.
In his State of Demand, plaintiff complains that defendants made false and fraudulent representations with intent to deceive the Office of Price Administration into granting permission to remove plaintiff and family from their apartment,
on the ground that they required the premises for their personal occupancy; that defendants made similar representations to plaintiff, knowing them to be false, with intent to deceive plaintiff, to his great damage and discomfort; that plaintiff, relying upon the truthfulness of said representations, after defendants had on or about May 1, 1947, served upon plaintiff notice to quit the premises, voluntarily moved on June 1, 1947. Plaintiff's proofs supported these charges.
The proofs establishing the fraud and deceit of defendants practiced upon plaintiff are: After plaintiff vacated the apartment, defendants never occupied same; that, on or about September 1, 1947, they re-let it to another tenant; that the new tenants had been promised the apartment by defendants "a considerable" time before it was rented to them in August, 1947; that defendants knew "a couple of days" before plaintiff moved that they did not intend to take possession, but did not so inform plaintiff.
Defendants, who conducted a business on the first floor, offered testimony to establish that their representations were truthful at the time they were made. Mrs. De Fabio testified that the reason that she and her husband did not move into the premises after plaintiff vacated same was because of the fact that she and her husband found it necessary to remain near Mrs. De Fabio's ill mother, in order to minister to her daily; that it would have been impossible to perform these ministrations and travel back and forth to the premises in question; that defendants were compelled, therefore, to abandon their original purpose to personally occupy the premises. The trial court, in its opinion, stated that it did not believe Mrs. De Fabio. Her husband, Antonio De Fabio, one of the defendants, for some unexplained reason, did not testify.
The gravamen of plaintiff's complaint is fraud and deceit charged against defendants. To succeed in such an action the principle of law applicable thereto is well established. It is succinctly stated in Plimpton v. Friedberg , 110 N.J.L. at p. 428 (E. & A. 1933), wherein Mr. Justice Case, speaking for the court, stated:
"The rule as to pleading and proof in actions for deceit has been tersely stated to be that the plaintiff must allege with reasonable certainty and be prepared to prove: (1) that the defendant made some representation to the plaintiff meaning that she should act upon it; (2) that such representation was false, and that the defendant, when he made it, knew it to be false; (3) and that the plaintiff, believing such representation to be true, acted upon it and was thereby injured. Kosobucki v. McGarry , 104 N.J.L. 65."
And, in Racanati v. Black Diamond Stevedoring Co., Inc. , 132 N.J.L. at p. 251 (E. & A. 1944), Mr. Justice Heher, speaking for the court, stated:
"Where false representations are willfully made as to a material fact, for the purpose of inducing another to act upon them, and he does so to his injury, he may recover such damages as proximately result from the deception. Kujek v. Goldman , 150 N.Y. 176, 44 N.E. Rep. 773."
In the recent case of Lyster v. Berberich , 3 N.J. Super. 78 (App. Div. 1948), in an action somewhat analogous to the issue here, Judge ...