Conford, Collester and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.
Plaintiff appeals, by leave of court, from an order of the Chancery Division vacating restraints previously imposed against the renting by defendants of an apartment to anyone other than one Arthur Matthews. The latter is a complainant before the Division on Civil Rights asserting unlawful discrimination by defendants against him because of his race (Negro) in refusing to rent an apartment to him. N.J.S.A. 18:25-12 (g), 13. At the time of the order under appeal, the complaint had not yet been heard in the Division, but a statutory finding of probable cause had been made by the Director (plaintiff herein). N.J.S.A. 18:25-14. Pending this appeal, a hearing officer in the Division heard the matter on August 25, 1967. He has not yet made his report and recommendations to the Director. After he does so, if the report is adverse to defendants they will have an opportunity to file exceptions with the Director before his final action in the matter.
The trial court in denying interlocutory relief relied on the decision in Pfaus v. Feder, 88 N.J. Super. 468 (Ch. Div.
1965), wherein it was held that although the court had jurisdiction to issue a restraint against a landlord in similar circumstances to preserve the status quo of the subject matter before the Division, a consideration of the financial loss to the landlord consequent upon such a restraint impelled the discretionary denial of the relief sought.
Affidavits in the Division show the following. Defendants own a three-family dwelling in Newark, one unit of which they occupy. On July 24, 1967 they advertised an apartment for rent. Matthews phoned defendants July 27, 1967 and made an appointment to view the apartment at 4 P.M. that day. When he arrived with his wife he was informed by defendant Mrs. Palermo that the apartment was rented and a deposit had been taken on it, whereupon he departed and informed Bruce Feldman, an employee of the State Department of Community Affairs, of the occurrence. Feldman, a Caucasian, went to the same premises at 4:50 P.M. the same day, and inquired about the apartment for occupancy by himself and his family, saying his name was Michaels. Mrs. Palermo thereupon showed him the second floor apartment, said it would be available August 10, 1967, that it rented for $135 monthly, and that a month's security would be required. He told her he would let her know after consulting with his wife.
In an affidavit filed in the trial court Mrs. Palermo states that she accepted a $20 deposit on the apartment (from one Mrs. Tamburri) on July 24, 1967 and $25 additional July 26, 1967. The balance was to be paid before moving into the apartment. Matthews inquired about the apartment on July 27, 1967, and she told him she had accepted a deposit on it, whereupon "without further conversation" he left. Later that day she showed the apartment to "Michaels" [Feldman] at his request. She informed him the then tenant would vacate August 10, 1967. The affidavit does not state that Mrs. Palermo told Feldman, as she had Matthews, that she had already accepted a deposit on the apartment.
The Deputy Attorney General represented to us at the oral argument that Feldman's participation in this matter was in the course of the execution of a joint program of the State Department of Community Affairs and the Division on Civil Rights in finding new housing for people previously residing in the Central Ward of Newark who were being dispossessed as a result of slum clearance and other redevelopment programs in the area. Matthews was one of those being thus assisted.
Affidavits on file on this appeal indicate that Mrs. Tamburri is now in possession of the apartment and residing there as a month-to-month tenant at a rental of $125 monthly. She deposed in the Chancery Division on August 14, 1967 that she had given $20 and $25 deposits on the premises to Mrs. Palermo on July 24 and July 26, 1967, respectively. She did not know defendants prior to July 24, 1967.
Pending the application of plaintiff for leave to appeal, a judge of this court temporarily stayed the order sought to be reviewed to the extent of restraining defendants from renting or leasing the apartment in question to anyone other than the aforementioned Mrs. Tamburri. That restraint was thereafter continued by the court until the determination of this appeal. Plaintiff now seeks its continuance until the Division acts on the complaint, pointing out that if its determination is in favor of the complainant and an order is entered requiring the apartment to be made available to Matthews on the same terms as would be offered any other renter, a prior lease of the premises for a term to an innocent third person would render Matthews' victory Pyrrhic and frustrate the strong public policy underlying the statute prohibiting discrimination in relation to the rental of real estate.
Defendants argue, however, that the matter has been mooted by the tenancy of Mrs. Tamburri. We think not. She is a monthly tenant whose tenancy can be terminated by landlord's 30-day notice. It would be premature for us to ...