as it appeared that a notice of appeal had been filed by defendant and that the appeal was still pending and undetermined.
(c) On December 14, 1951, a hearing was held on defendant's motion to vacate the judgment:
'* * * on the grounds that it was clearly against the weight of the evidence; was based substantially on perjured testimony; and on the allegedly newly discovered evidence that the receipt produced by Harold Evans, a witness on behalf of the plaintiff, was forged and altered in substantial respects * * *'.
Judge McLaughlin found that the grounds with respect to the weight of the evidence, including the quality of the testimony, were finally disposed of by order of court dated October 24, 1951, which followed a motion by the defense to set aside the judgment in the case; that the allegedly newly discovered evidence could have been produced at the trial of the cause had due diligence been exercised by the defense and that in any event it was improbable that such alleged evidence would have changed the result.
On appeal of the rental overcharge case, the United States Court of Appeals for this Circuit, 196 F.2d 493, affirmed Judge McLaughlin's findings that a landlord and tenant relationship existed and the defendant accepted rents in excess of the established maximum.
In the present action, defendant again interposes defenses raised in the rental overcharge action, to wit, that a landlord and tenant relationship did not exist between defendant and Harold Evans; that the prior action was decided clearly against the weight of the evidence, and was based upon perjured testimony; testimony; that newly discovered evidence would show that the receipt produced by Harold Evans was forged and altered. These same defenses have been considered and found without merit in the prior action. This court cannot consider them now.
The power of this court to issue an injunction restraining defendant from evicting the tenant,in spite of the later judgment obtained in the state court, is well settled. Housing and Rent Act of 1947, as amended, Sec. 206(b), 50 U.S.C.A.Appendix, § 1896(b); Fleming v. Rhodes, 1947, 331 U.S. 100, 67 S. Ct. 1140, 91 L. Ed. 1368; Porter v. Lee, 1946, 328 U.S. 246, 66 S. Ct. 1096, 90 L. Ed. 1199; Porter v. Dicken, 1946, 328 U.S. 252, 66 S. Ct. 1094, 90 L. Ed. 1203; and Fleming v. Chapman, 2 Cir., 1947, 161 F.2d 345, 346.
The plaintiff's application for a permanent injunction will be granted.
An order may be submitted in conformity with the opinion herein expressed.
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