#### Ferguson, Appellee, *v.*Buddenberg et al., Appellants.

(No. 7225

Decided May 15, 1950.)

*Mr. Albert M. Freiberg,*for appellee.

*Messrs. Ginocchio & Ginocchio,*for appellants.

Ross, P. J.

This appeal on questions of law is from a judgment of the Court of Common Pleas of Hamilton County, predicated upon a verdict in favor of the plaintiff, which was by remittitur reduced from $2,250 to $1,000. Such verdict included a sum for punitive damages.

The action is predicated upon fraud, that is, upon false representations as to the existence of an intention to personally use the premises rented to plaintiff, and sole reliance upon such representations by which plaintiff was induced by defendants to relinquish a right of occupancy secured to him by law.

Only by virtue of the Federal Housing and Rent Act could such an alleged relinquished right be shown to exist. The plaintiff, a tenant from week to week, had no common-law right to occupy the premises longer than the landlord desired. There is no state statutory inhibition against the eviction of the plaintiff.

*327What right did the housing act confer † Simply the right to be free from “an action or proceeding to recover possession.”

The defendants simply served a notice to vacate the premises. The plaintiff voluntarily acquiesced in the request to vacate. He had a valid defense against any *possible*later unlawful action to evict.

If the defendants were guilty of an abuse of process, the plaintiff would have, upon proof of same, an adequate remedy at law.

Plaintiff* claims that the right of plaintiff to remain in the premises was a “status imposed upon them by federal law.”

The federal law iherely protected plaintiff from an unlawful action or proceeding. There is no inhibition in the federal act against a request by the landlord to the tenant to leave the premises. The statement that such acquiescence in such request would prevent resort to legal proceedings has no force, since such proceedings could not be unlawfully maintained.

No protest of any kind was made by the plaintiff. As far as the evidence shows he may have been perfectly content in any event to seek other and better quarters.

To permit the maintenance of the present action would open the door wide to a recourse to the courts whenever, after voluntary change of quarters, the vacating tenant discovered that the landlord had rented such vacated quarters for an additional amount.

If the plaintiff had any rights in the premises, he voluntarily released and waived such rights by vacating the premises without protest.

Although some authority without this state is shown contrary to these conclusions, in no case in Ohio has such an action as the instant proceeding been countenanced. The adequate protection of the federal housing act, being in derogation of the common-law rights *328of the defendants, should not be extended beyond its clearly expressed scope.

The motion of the defendants for an instructed verdict, made at the conclusion of all the evidence, should have been granted, and this court will enter the judgment for the defendants which the trial court should have rendered.

As we so conclude, it becomes unnecessary to pass upon the claims of the defendants, which would induce this court to set aside the judgment for passion and prejudice in the verdict, and that such verdict is against the manifest weight of the evidence.

*Judgment reversed.*

Ross, P. J., Hildebrant and Matthews, JJ., concur in the syllabus, opinion and judgment.