Opinion
Action under the Emergency Price Control Act by Louis Kamoses against William H. Martin to recover treble damages for alleged rental overcharges. On motion by Mary S. Kamoses, administratrix of the estate of Louis Kamoses, to be substituted as a party plaintiff, and on defendant's motion to dismiss.
Motion for substitution overruled and defendant's motion to dismiss granted, and cause dismissed.
Edward P. Frolick, of Detroit, Mich., for plaintiff.
John P. Neudorfer, of Detroit, Mich., for defendant.
LEDERLE, District Judge.
This case, claiming treble damages for alleged rental overcharges under 50 U.S.C.A.Appendix, § 925(e), having come on to be heard upon the motion of Mary S. Kamoses, Administratrix of the Estate of Louis Kamoses, (who has died since institution of this case) to be substituted as party plaintiff, and upon the defendant's motion to dismiss, and
The court having heard arguments thereon, and briefs having been filed and considered,
Now, Therefore, it is Ordered:
1. That said motion for substitution be, and it is hereby overruled, and the defendant's motion to dismiss be, and it is hereby granted and the cause dismissed, for the reason that plaintiff's action is one for a penalty, which abated upon the death of the plaintiff and did not by law survive to his administratrix. See: Federal Rules of Civil Procedure, Rule 25(a), 28 U.S.C.A. following section 723c; Bowles v. Farmers Nat. Bank, 6 Cir., 147 F.2d 425; Bishop v. Rosin, D.C., D.C.E.D. Mich., S.D., 69 F.Supp. 915 (to the same effect); Continental Baking Co. v. Woodring, D.C., 55 F.2d 347, 350, affirmed 286 U.S. 352, 52 S.Ct. 595, 76 L.Ed. 1155, 81 A.L.R. 1402 (as to the rule of comity between courts of co-ordinate jurisdiction, sitting in the same district); Fletcher v. Grinnell, D.C., 64 F.Supp. 778 (holding that an action under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., survives to the deceased's employee's administrator).
2. Defendant having waived costs in open court on January 13, 1947, no costs will be allowed either party. See: Rule 54(d).