MANSOUR GABRIEL
vs.
JOHN BOROWY & another.
Supreme Judicial Court of Massachusetts, Essex.
December 7, 1950. January 4, 1951.Present: QUA, C.J., RONAN, WILKINS, WILLIAMS, & COUNIHAN, JJ.
*670 R.A.A. Comparone, for the plaintiff, submitted a brief.
No argument nor brief for the defendants.
RONAN, J.
This is an action of tort to recover damages by a tenant against two landlords arising from their bringing an action of summary process to recover possession of the tenement which the defendants falsely and fraudulently represented they were bringing "in good faith to recover possession of such housing accommodations for ... [their] immediate and personal use and occupancy as housing accommodations" as permitted by the housing and rent act of 1947, U.S.C. (1946 ed.) Sup. I, Title 50, Appendix, § 1899 (a) (2). The plaintiff excepted to the sustaining of a demurrer to all counts of the declaration.
*671 We overruled the plaintiff's exceptions to the sustaining of a demurrer in a previous action, Gabriel v. Borowy, 324 Mass. 231, and ordered judgment for the defendants, but that judgment does not bar the plaintiff from maintaining the present action, even if based upon the same transaction as the first action, for reasons fully discussed in Hacker v. Beck, 325 Mass. 594.
The first count in the instant declaration, which the plaintiff describes as one for damages for an illegal eviction, alleges that the defendant landlords, after serving upon him a notice to quit, brought an action of summary process in a District Court falsely representing that they desired the premises for their own use, which the present plaintiff believed to be true; that in that action judgment was entered for the defendant landlords; that a stay of execution was granted at the plaintiff's request; that he then vacated the premises; that upon his subsequently discovering the fraud of the defendants, the judgment for possession was reversed and the court found for the plaintiff the defendant in the summary process action; and that the defendants by the aforesaid conduct have illegally evicted the plaintiff from the tenement.
This count does not allege that the plaintiff was physically ousted from the premises, or that these defendants entered upon the premises or did anything upon or about the premises that interfered with or deprived the plaintiff of their use or enjoyment. Nothing of that character is alleged. The only wrong complained of is the commencement and maintenance by the defendants of an action of summary process against the plaintiff which finally resulted in a judgment for the plaintiff, which proceedings were brought and prosecuted by the defendants upon the false and fraudulent basis that they desired the premises for their own use. Where it was recently contended by a former tenant that bringing an action of summary process in consequence of which the tenant vacated was a tortious eviction because the landlord did not intend to occupy the premises himself, it was said that "the tort could hardly be described *672 as an eviction." Noyes v. Shanahan, 325 Mass. 601, 603. Sher v. Perlman, 324 Mass. 390, 392. This count, in so far as it purports to set forth a cause of action for an illegal eviction, is no better than was a similar count in the previous action which we decided was not "ample to permit him to maintain an action for a wrongful eviction." Gabriel v. Borowy, 324 Mass. 231, 235. The demurrer as to this count was rightly sustained.
The second count, it is contended, is sufficient to set forth a cause of action for abuse of process. The writ was brought for no other purpose than to secure possession of the plaintiff's tenement, which was the sole purpose for which the writ was authorized and designed. That the count does not set forth a cause of action for abuse of process is settled by Gabriel v. Borowy, 324 Mass. 231, 236, and cases cited. Noyes v. Shanahan, 325 Mass. 601, 604-605, and cases cited.
The third count sets forth all the essential elements for a cause of action in deceit. It sufficiently alleges the making of a material misrepresentation of fact by the defendants, which they knew to be false, with the intent that the plaintiff should rely upon it, which the plaintiff did to his damage. Kilroy v. Barron, ante, 464.
It follows that the demurrer was rightly sustained as to the first two counts but that there was error in sustaining the demurrer as to the third count, and that the exceptions must be sustained as to the ruling on this count.
So ordered.