Frank v. Howich

DRAPEAU, J. Defendant, Ruth Howich, leased a duplex apartment in her house to plaintiff, Harriet Frank. The lease was for three years, commencing April 20, 1948, and for a rental of $225 a month. The amount of rent was agreed upon at the suggestion of Mrs. Frank in consideration of the three-year term granted to her in the lease. When the lease was executed Mrs. Frank paid the rent for the first month, and the further sum of $675.

After Mrs. Frank had paid Mrs. Howich $3,350 under the lease, she learned that the premises had become 111 controlled ’ ’ under the Federal Housing and Rent Act of 1947, as amended in 1948 (50 U.S.C.A. App., §1881 et seq.; F.C.A., title 50 App. 94, § 205), and that, effective April 1, 1949, the rent ceiling of her duplex apartment was $80 per month. This “ceiling” was later raised to $90 per month.

Mrs. Howich had no information at the time of making the lease, or thereafter until her tenant sued her, that the rental payments were unlawful.

Mrs. Frank brought this action against Mrs. Howich, and demanded treble damages for' overpayments of- rent, together with $1,000 counsel fees—a total of $11,050.

Mrs. Howich answered, denying the intent' to violate the law which is required under the terms of the statute before [61]treble damages may be adjudged; and, by way of cross-complaint alleged and prayed for damages for waste and damage to the premises.

The trial court found that the housing and renting act did apply during portions of the tenancy, but that defendant’s violation of it was neither wilful nor the result of failure to take practicable precautions against the occurrence thereof, and, therefore, that treble damages should not be allowed; that there was a balance due of $1,160 in this respect from the defendant to the tenant, and that $300 was a fair allowance for plaintiff’s counsel fees. The court further found that $225 per month was the reasonable value of the use of the premises after the termination of the lease, and that after rent control ended the rental provisions of the lease governed the rights of the parties. The court refused to direct recovery of the $675 paid upon the execution of the lease, and found that it was additional consideration for the lease. The court also found that plaintiff had committed waste and damage to the premises in the amount of $400. Finally, taking into account all of the foregoing items, except the one for $675, the court found that there was a balance due from defendant to plaintiff of $340.