Schettino, Hall and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.
This is an action by a tenant for restitution, on the theory of unjust enrichment, of rents paid to defendant landlord from July 1, 1956 to August 1, 1957 in excess of the lawful maximum fixed by ordinances of Union City adopted under the authority of L. 1956, c. 146; N.J.S. 2 A:42-56. The Hudson County District Court entered judgment for defendant, after trial without a jury, and plaintiff appeals.
An earlier phase of this litigation was before this court in Jenkins v. Kaplan , 50 N.J. Super. 274 (App. Div. 1958). In that opinion this court said (at page 282):
"Defendant argues that the complaint should have been dismissed with finality because it does not appear therefrom that the payments by the plaintiff were not voluntary. The law in this regard is clear. The payments were not voluntary if plaintiffs were under compulsion because of unavailability of other housing accommodations. Brinkmann v. Urban Realty Co., Inc., supra (10 N.J. at page 120)."
In the Brinkmann case, the Supreme Court said (10 N.J. 113, at pages 119-120 (emphasis ours)):
"* * * This exaction resulted in the unjust enrichment of the defendants at the plaintiffs' expense and, special defenses aside, entitles the plaintiffs to restitution under settled equitable principles cognizable in the lower court. * * * As a special defense the defendants assert that the plaintiffs' payments were voluntary and as such not recoverable. Buschbaum v. Barron , 1 N.J. Super. 4, 7 (App. Div. 1948); Mee v. Town of Montclair , 84 N.J.L. 400, 401 (E. & A. 1913). If the plaintiffs were aware of all of the true facts and without 'compulsion of the circumstances' (McGregor v. Erie Railway Co., supra) entered into the transaction, then the doctrine sought to be invoked by the defendants would presumably bar the plaintiffs' recovery. If, however, as presently appears, they were unaware of the true facts or had no practical choice but to participate because of the unavailability of other housing accommodations, then the doctrine would presumably be inapplicable."
It is therefore the law of this case (United and Globe Rubber Mfg. Co. of Trenton v. Conard , 82 N.J.L. 680 (E. & A. 1912)) that the payments here made "resulted in the unjust enrichment of the defendants at the plaintiffs' expense, and, special defenses aside, entitles the plaintiffs to restitution"; that plaintiff may not recover if she was "aware of all of the true facts and without 'compulsion of the circumstances' entered into the transaction"; but if she was "unaware of the true facts or had no practical choice but to [pay] because of the unavailability of other housing accommodations" the payments would not be deemed voluntary.
After the decision in 50 N.J. Super. 274, supra , the case was tried on its merits. At that trial it was stipulated that the payments had been in excess of the maximum allowed by law. Therefore, the only questions before the trial court were whether they were voluntary and, if not, whether there were any other "special defenses" which barred plaintiff's recovery.
Since the testimony was not taken down stenographically, the record has been settled by the trial court pursuant to R.R. 1:6-3; and since the case was tried without a jury,
the court filed its findings of fact and conclusions of law pursuant to R.R. 7:16-3.
Plaintiff contends in this appeal that (1) the record shows that the payments were not voluntary, and (2) the trial court erred (to quote appellant's brief) "in basing its judgment on general ...