The opinion of the court was delivered by: BRUCHHAUSEN
The defendants move for a dismissal of the complaint upon various grounds, hereinafter referred to.
The plaintiffs were the purchasers of dwellings, erected by the defendant, Haldale Estates, Inc. The defendants, Harold Evans and Karl Major are officers, directors and stockholders of the said corporate defendant.
A number of the causes of action are grounded upon 38 U.S.C.A. § 694c-1, a statute designed to protect veterans in purchasing dwellings. The present complaint was amended to conform to a change in the statute, effective August 1, 1956.
A group of causes of action, under attack, are those wherein veterans are the plaintiffs.
The names of the veterans and the paragraphs of the complaint, containing those causes of action, are as follows:
Guy S. Brown, Jr. First to Fifteenth, incl.
Peter J. Cella Nineteenth to Thirtieth, incl.
Charles P. Mackin Thirty-third to Forty-third, incl.
John Koger Forty-sixth to Fifty-sixth, incl.
Daniel Cantor Fifty-ninth to Sixty-ninth, incl.
John Phillips Seventy-second to Eighty-second, incl.
Charles Jacker Eighty-fifth to Ninety-fifth, incl.
The said first causes of action of the seven 'veteran' plaintiffs are similar in nature. Each plaintiff alleges that he contracted to purchase a dwelling from the defendant corporation and paid for same, in part, with the proceeds of a loan, guaranteed by the Veterans Administration, and that the purchase price exceeded the amount of the appraisal, determined by the Administrator. Each plaintiff claims that the said statute entitles him to recover three times the amount of the excess payment. The amount thereof in each instance is less than $ 500.
The statute, in substance, provides that whoever 'knowingly' sells property to a veteran at a price in excess of the value, as appraised by the Administrator, shall, if the veteran pays for the property, wholly or in part with the proceeds of a loan guaranteed by the Veterans Administration, be liable for three times the amount of such excess; that the action may be instituted in any United States District Court, which court may as part of the judgment, award reasonable attorneys' fees to the successful party; that if the veteran fails to institute the action within thirty days after discovering the overpayment, the Attorney General may do so in which event the veteran shall be paid one-third of the recovery and the Government, the balance thereof.
There is no claim that the Attorney General has commenced an action, so that the delay on the plaintiffs' part, if any, beyond the thirty day period is of no consequence. There is a defect, however, in the failure of the plaintiffs to allege that the excess payments were 'knowingly' charged. The Court permits the plaintiffs to amend the complaint accordingly.
Another group of causes of action, also under attack, hereinafter termed 'the veterans' second causes of action', are those wherein each of the seven veterans are plaintiffs, and which actions are not grounded upon the said veterans statute but are claims for the poor and unworkmanlike manner in which the dwellings were constructed, requiring the expenditure of moneys for the correction of the faults.
The defendants urge the dismissal of the aforesaid causes of action, contending that each involves a sum less than $ 3,000, the jurisdictional amount provided for in 28 U.S.C.A. § 1331.
Three of the plaintiffs are non-veterans, but purchased their homes with mortgages guaranteed by the Federal Housing Authority. They allege that their contracts of purchase were contingent upon procuring such mortgages and that the dwellings were to be constructed in accordance with plans and specifications filed with said Authority. They further allege that the said dwellings were not constructed in accordance with said plans, but in a poor and unworkmanlike manner, requiring certain expenditures for the correction of such defects. The statute does not vest the Court with jurisdiction of these non-veteran claims.
All of the plaintiffs join in a further cause of action, alleging that at the time they took title to their dwellings, certain moneys were deposited in escrow with the Freeport Bank, which moneys were paid over to the Greater New York Savings Bank, and that, in due course, the plaintiffs will commence a proceeding naming the Greater New York Savings Bank and defendants herein as parties thereto, directing said bank to hold said escrow moneys, or deposit same in court, pending the final disposition of this matter. The Court has no authority to rule on this potential cause of action.
Defendants also move to dismiss all of the causes of action herein, claiming that each is below the jurisdictional amount of $ 3,000, mentioned in 28 U.S.C.A. § 1331.
No individual litigant herein, even combining the two causes of action of each of the seven veteran plaintiffs, seeks damages in excess of $ 3,000, exclusive of interest and costs. Since this is not a true class action, because several plaintiffs are not uniting to enforce a single title or right, and there is no intimation that non-appearing parties could have their rights adjudicated in this proceeding, the jurisdictional amount will not be attained by combining the claims of the several plaintiffs. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S. Ct. 744, 83 L. Ed. 1001; California Apparel Creators v. Wieder of California, Inc., 2 Cir., 162 F.2d 893, 174 A.L.R. 481, certiorari denied ...