McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by McGeehan, S.j.a.d.
The plaintiff, a former tenant, sought to recover damages from the defendant in an action on deceit for an alleged wrongful dispossession. The complaint was dismissed by the Passaic County Court at the end of the plaintiff's case.
On or about July 1, 1948, the defendant purchased the property which contained four apartments, all of which were controlled housing accommodations. The plaintiff occupied a three and one-half room apartment therein from April, 1947, until shortly before January 2, 1949. On August 23, 1948, the defendant served plaintiff with a written demand for possession, demanding that the plaintiff vacate on October 1, 1948, and stating: "Possession of said premises is demanded in good faith for the purpose of immediate use thereof by myself pursuant to the rules and regulations of the Housing Expediter and or the O.P.A." The plaintiff continued in possession after October 1, 1948.
On November 17, 1948, the defendant instituted a dispossess proceeding in the Clifton District Court, and in his affidavit stated that "he seeks in good faith to recover the possession of the housing accommodations occupied by the said Herman Hirschberg for the immediate and personal use
and occupancy as housing accommodations for the said deponent." On the return day, November 30, 1948, both parties consented in open court to the entry of the following judgment: "Judgment in favor of the plaintiff and against the defendant for possession. Warrant of Removal to issue January 2, 1949." The defendant moved into the apartment on or about January 2, 1949, after the plaintiff had vacated.
A tenant has an action on deceit against his landlord for a wrongful dispossession if the tenant does not seek to attack the judgment of dispossession but merely the fraudulent means used by the landlord to obtain possession of the premises. Lyster v. Berberich , 3 N.J. Super. 78 (App. Div. 1949). To support such an action, the tenant must prove (1) that the landlord made some representation of a material fact to the tenant, meaning that the tenant should act upon it; (2) that such representation was false and that the defendant, when he made it, knew it to be false; and (3) that the tenant, believing such representation to be true, acted upon it and was thereby injured. Plimpton v. Friedberg , 110 N.J.L. 427, 428 (E. & A. 1933); Lyster v. Berberich , above.
The applicable provision of the Federal Housing and Rent Act of 1947 is section 209(a), as amended in 1948 (1948 Public Law 464, c. 161, § 204), which authorizes eviction of a tenant when "the landlord seeks in good faith to recover possession of such housing accommodations for his immediate and personal use and occupancy as housing accommodations, or for the immediate and personal use and occupancy as housing accommodations by a member or members of his immediate family * * *."
Accepting as true all evidence which supports the view of the plaintiff, and giving him the benefit of all legitimate inferences which might be drawn therefrom, as the court below was required to do in passing on the motion to dismiss (McKinney v. Public Service Interstate Transport. Co. , 4 N.J. 229 (1950)), we conclude that the plaintiff failed to make out a prima facie case.
There was testimony by the defendant that he intended throughout to use only one room of the three and one-half room apartment for his own personal use and occupancy and intended to rent the remaining rooms. When he took possession on or about January 2, 1949, he moved into the apartment with the only furniture he owned, namely, a bedroom set. For two and one-half months he was the sole occupant of the apartment, and thereafter he occupied one room and rented two and one-half rooms as a furnished apartment to a person not a member of his family.
The plaintiff argues that this testimony would support a finding that the defendant's representations, in his demand for possession and in his affidavit in the dispossess proceeding, were false and that the defendant knew that they were false when he made them. The plaintiff assumes that, under the language of the Housing and Rent Act, the defendant could evict the plaintiff only if he needed and intended to use the whole of the apartment solely for his own personal use and occupancy or that of a member or members of his immediate family. No authority for such construction is cited to us. We note that in Klein v. Fields , 32 A.2d 398 (Mun. Ct. of App. D.C. 1943), the court, in construing the District of Columbia Emergency Rent Act in a dispossess proceeding, found that the landlords "sought the possession of the property in good faith for their immediate use and occupancy as a dwelling," although the testimony was that the landlords desired to occupy the premises as a dwelling for themselves, their daughter and two grandchildren, and intended to rent out any unneeded rooms to others. Cf. H. Kauffman & Sons Saddlery Co. v. Miller , 72 N.Y.S. 2d 911 (Sup. Ct. 1947); but see Barker v. Sharp , 38 N.W. 2d 221 (Sup. Ct. Minn. 1949), also a dispossess proceeding.
The plaintiff further assumes that the defendant, in making his representations in a paraphrase of the language of the Housing and Rent Act, represented that he needed and intended to use the whole of the apartment solely for his own use ...