been barred by statutory limitation. However, where as here, the claim for damages had been otherwise barred prior to the effective date of the Amendments, the statutory grant of jurisdiction will avail a plaintiff only if the institution of the action in this court, at a time when it lacked jurisdiction, suspended the running of the period of limitation prescribed by the Act.
Prior to its amendment the Act required that an action thereunder be brought in a 'court of competent jurisdiction, within one year after the date of' violation. This limitation is substantive and is a restriction not only on the remedy but also on the right of recovery. Cf. Matheny v. Porter, 10 Cir., 158 F.2d 478. We are of the opinion that under these circumstances the commencement of an action in a court which lacks jurisdiction is a nullity and will not interrupt the running of a statute of limitations. Fairclough v. Southern Pac. Co., 171 App.Div. 496, 157 N.Y.S. 862, affirmed 219 N.Y. 657, 114 N.E. 1066. The commencement of an action in a court which lacks jurisdiction of the subject matter will toll the statute of limitations if the court has the authority under the law to transfer the action to a court of competent jurisdiction. Herb v. Pitcairn, 324 U.S. 117, 65 S. Ct. 459, 89 L. Ed. 789, and 325 U.S. 77, 65 S. Ct. 954, 89 L. Ed. 1483. There is no such authority in this court.
The plaintiff in the instant case became entitled to maintain his action in this court on July 31, 1951, the effective date of the Amendments, but on that date his claim for damages, except the claim for the overcharge demanded and received by the defendant on August 1, 1950, had been extinguished by the statutory limitation. The claim for the overcharge demanded and received by the defendant on August 1, 1950 had not been extinguished prior to the effective date of the amendments; this Court therefore acquired jurisdiction of the action based solely on this claim. The erroneous commencement of the action in this court did not defeat the right of the plaintiff to enforce a claim for damages based upon an overcharge demanded and received by the defendant within one year prior to the effective date of the Amendments; the jurisdiction theretofore lacking was granted by the Amendments and the plaintiff may now maintain the action based solely on the said claim.
The defendant is entitled to summary judgement in his favor as to only part of the plaintiff's claim, to wit, the claim for damages based upon overcharges demanded and received by the defendant prior to August 1, 1950.
NOTE: The question here presented was heretofore decided by my colleague, Judge Fake, Schuman v. Greenburg, D.C. 100 F.Supp. 187, but after careful consideration we are inclined to respectfully disagree with his decision.
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