Opinion
Submitted May 2, 1944 —
Decided July 17, 1944.
In an action for a statutory penalty brought against a master for unlawful action by his servant the concurrence or assent of the master is not presumed, but must be shown.
On appeal from the Orange District Court.
Before Justices PARKER, HEHER and COLIE.
For the appellant, Louis Zemel.
For the respondents, Abraham M. Herman.
The action is by tenants against their landlord to recover the penalty provided by section 205 (e) of the federal Emergency Price Control Act, in cases where rents of housing accommodations have been "stabilized" under that act. The cited section provides a penalty of thrice the excess over maximum price, or $50, whichever is the greater. The maximum rent officially fixed in this case was $27 per month, and the plaintiffs for two successive months paid rent of $30 to one Thomas Farina, taking his personal receipt for the same. On this evidence, judgment was rendered for the penalty of $50 per month.
We conclude that there was error. The case is barren of any direct evidence that the defendant, who became owner just prior to the collection of the $30, had directed any increase of rent, or had engaged Thomas Farina to collect the rent, or had received it from Thomas.
The action is for a penalty, and the law is settled that in a penal action against a master for the act of a servant the general rule of respondent superior in civil actions does not apply, and direct authority should be shown. 25 C.J. 1193-4: Roeber v. Society, 47 N.J.L. 237.
The judgment is reversed, with costs.