exceed the Housing Expediter's claim for restitution.
The defendant contends that the counterclaims he filed against the tenants raise such an issue of fact so as to prevent the entry of summary judgment. I disagree.
The counterclaim filed against James F. Welch is one sounding in tort for assault and battery. It alleges that while the defendant was lawfully up in the second floor apartment, Welch hit the defendant with a door.
By the terms of Judge McGranery's Order adding the tenants as parties plaintiff and allowing the defendant to file counterclaims against them, such counterclaims must relate to the principal cause of action for rent overcharges- that is, they must be compulsory counterclaims. Rule 13(a) of the Federal Rules of Civil Procedure.
There are no facts alleged in either the defendant's answer or his counterclaim against Welch that indicate that rent overcharges in any way caused the alleged altercation.
In this instance the defendant's counterclaim for assault and battery by the tenant regardless where it occurred, is not related to the Housing Expediter's cause of action for rent overcharges. It in no way puts at issue any material fact in the Housing Expediter's cause of action, and it cannot bar the entry of summary judgment for the Housing Expediter as to restitution to James F. Welch.
The defendant's counterclaim against Elizabeth Hansen is insufficient in law and must be dismissed for it will not bar the entry of summary judgment for for the Housing Expediter or defeat execution thereon.
An inherent part of this counterclaim is the tacit admission that Elizabeth Hansen was overcharged for rent, and it alleges increased occupancy as the reason therefor. The defendant contends that he rented the apartment for one
Increased occupancy may be a valid reason for requesting the Area Rent Director to increase the maximum rent allowed. But until such an order has been issued, the landlord cannot of his own volition increase the maximum rent without violating the Housing and Rent Act of 1947, as amended. West v. Winston, D.C. 8 F.R.D. 311.
The defendant's answer has denied that any violations were wilful or the result of failure to take practicable precautions against their occurrence. It is my belief from the allegations of the complaint, answer, and counterclaims and the admissions under Rule 36 that these violations were wilful. Haber et al. v. Garthly et al., D.C., 67 F.Supp. 774. However, proof of wilfulness or of failure to take practicable precautions to prevent a violation is not necessary to sustain a judgment ordering restitution of the amount of the overcharges. 50 U.S.C.A.Appendix, § 1895.
The other reasons assigned by the defendant in opposition to the entry of summary judgment for the Housing Expediter are without merit.
The motion of Tighe E. Woods, Housing Expediter, Office of Housing Expediter for summary judgment on that portion of the complaint requiring restitution to the tenants James F. Welch and Elizabeth Hansen is hereby granted. The amount payable to the Treasurer of the United States for the use of these tenants will be included in another opinion in this case, D.C., 93 F.Supp. 403, which is also filed this date.