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Davies v. Botticher

Decided: December 12, 1950.

ISLWYN DAVIES, PLAINTIFF-RESPONDENT,
v.
PAULINE E. BOTTICHER, DEFENDANT-APPELLANT



McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

The plaintiff prosecuted an action for the recovery of treble damages, alleging in the complaint, as amended, rental overcharges by the defendant in violation of the Emergency Price Control Act of 1942, as amended, and the Housing and Rent Act of 1947. The action was tried by consent before a judge of the Law Division of the Superior Court without a jury, and a judgment in favor of the plaintiff eventuated in the sum of $788.25 damages, with costs and the allowance to the plaintiff of a counsel fee of $100. The appeal (No. A-345-49) challenges the propriety of that judgment.

In scrutinizing the record our attention initially falls upon the pleadings and the pretrial order in quest of knowledge of the issues which were presented to the trial judge for determination.

The amended answer of the defendant contained a general denial of the allegations of the complaint, and three separate defenses in which it was averred that the plaintiff fraudulently misrepresented the number of persons who would occupy the demised premises and that the plaintiff conspired with another tenant of the building to intimidate and extort money from the defendant. Her answer was accompanied by a counterclaim for damages alleged to have been sustained by her in consequence of the fraud and conspiracy averred in the answer.

The pretrial conference fulfilled its function in decreasing the issues actually in controversy. The following quotation taken from the pretrial order is significant:

"Plaintiff claims that the premises in question were the subject of a registration certificate filed by the defendant fixing a rental of $30 monthly including all services.

"Plaintiff has moved to amend the ad damnum clause in each count of the complaint so as to seek recovery for treble damages instead of the $50 civil damage allowance provided by the act. This amendment is allowed.

"Defendant admits that a registration certificate fixing the maximum ceiling of $30 for the apartment in question was filed by her with the Federal authorities. Defendant also admits that she received the rents set out in each count of the complaint. Defendant further concedes that the ceiling first established of $30 was never changed officially. Defendant contends that the plaintiff occupied additional space in the apartment not covered by the original registration with the OPA. This additional space was the use in common with other persons in the building of a lavatory and wash room. The defendant contends that the use in common with others was for a short period and thereafter the plaintiff had the full use.

"Defendant further claims that she was forced and intimidated to pay over sums of money the plaintiff representing these overcharge claims, that she did so, and by this means all of the plaintiff's claims have been satisfied.

"Defendant has filed a counterclaim against this plaintiff which on account of failure of specific proof of damage the defendant hereby abandons.

"Defendant by way of third party complaint has brought James Flaherty into the case as a defendant."

Thus the counterclaim was voluntarily abandoned, and it was evident at the trial that the registration in the office of the Price Administration under section D entitled "Equipment and services" included "Bathroom & toilet shared by other tenants." The assertion in the pretrial order that the defendant had satisfied the plaintiff's claim collapsed. She had ...


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