(dissenting).
The problem does not lend itself to easy solution. But I think the fairer, safer answer, and the one more in harmony with the purposes of the Emergency Rent Act, would be to say that in circumstances like these a landlord must refund, without penalties, the rent he has received in excess of that later fixed by the Rent Administrator. I fear that the view adopted by my colleagues may encourage same landlords to “guess” exceedingly high in fixing rents on properties on which there had been no ceiling. Tenants in their desperation would agree to almost any terms in order to get a roof over their heads. And by the time the ceiling was fixed by the Administrator, the landlord would have received perhaps many months of excess rent. And, says the majority opinion, the courts have no right to order it refunded. This is no random situation. The Administrator tells us there are s-ome 10,000 cases in this category. If the same rule is applied to all, a substantial part of the Emergency Rent Act will have been rendered nugatory, a premium will have been placed upon avarice, and inflation will have been encouraged.
The Administrator may be able to work out some plan of regulation which will solve this problem in an administrative way. But in the meantime we are by no means powerless to save the situation. The judgment should be affirmed.