for only in the class of proceedings specified by law, namely, summary proceedings for non-payment of rent. No such right exists in a summary proceeding to oust a tenant holding over without a lease. In the latter type of proceeding, all that the court has power to do is to grant or refuse to grant the relief asked for, that is, a dispossess warrant. Mention is made of this quite obvious point because we find a recent case in which a lower court, in a "holdover" proceeding, did undertake to determine a "reasonable rent." Its error was quickly corrected on appeal.53

There are numerous decisions, which will be considered in the next chapter, to the effect that the emergency laws are not retroactive and do not permit the defense of unreasonableness and oppressiveness to be interposed in an action for rent under a lease made prior to April 1, 1920. These rulings are probably equally applicable in summary non-payment proceedings, but decisions to this effect directly in such proceedings are few. One such is an unreported memorandum opinion of the Appellate Term in Brooklyn.54 The point has also been raised that the defenses created by the September, 1920, laws should not be available in cases arising under leases made after April 1, 1920, but prior to September 27, 1920. This contention has been dismissed by the courts as untenable, for the reason that the September laws were merely amendments of the April laws, so that defenses thereunder could not be regarded as working retroactively when applied to actions or proceedings under leases made after April 1, 1920.55

58 Weiner v. Spielman (App. Term, 1st Dept.), 189 N. Y. Supp. 97.

54 Herman v. Messner (App. Term, 2d Dept., memo. opinion No. 434, December 30, 1920), not reported.

55 Lewine v. Weil, 188 N. Y. Supp. 385; Ulster Court Corp. v. Holdsworth (N. Y. Mun. Ct., 7th Dist., Spiegelberg, J., Feb. 14, 1921; aff'd. June 22, 1921), not reported.

CHAPTER XI

Stays and Warrants

STAYS

We have seen that one of the so-called "permanent" emergency laws gives the Municipal Courts in New York City discretionary power to stay the execution of warrants in summary proceedings for a period of not more than thirty days after the rendering of the final order. Such stay may be granted only at the time of making the final order.2 As a condition of the stay, the tenant is required to deposit in court rent sufficient to cover the period of the stay, "at the rate fixed by the landlord for the month immediately prior to the rendering of the final order." The law provides that this deposit shall be paid by the clerk of the court to the landlord or his agent. Failure to make the deposit is ground for the granting of an order for a dispossess warrant, on application, by the Supreme Court.3

This provision is applicable in New York City alone, is a permanent part of the law, and is applicable to all classes of property. Outside the City of New York, the Legislature has, as a temporary measure, operative only until November 1, 1922, given the courts the right to grant special discretionary stays up to periods of one year.1

1 Laws of 1920, Chap. 210, amending Municipal Court Code, § 6, subd. 3. 2 People ex rel. Halperin v. Strahl (Supreme Court, Kings County), 113 Misc. 23, 184 N. Y. Supp. 710.

'People ex rel. Roth v. O'Leary (Kings County, Manning, J.), N. Y. Law Journal, Nov. 9, 1920, page 473.

'Laws of 1920, Chap. 948.

6

It will be remembered, from what has been said in a previous chapter,5 that originally the emergency law granting the right to give such stays was applicable to all cities of the first class and cities in counties adjoining such cities; that is, to New York City, Buffalo, Rochester, Yonkers, Mt. Vernon, New Rochelle and White Plains. By the laws passed September 27, 1920, other relief, the nature of which we have heretofore discussed,' was granted in the case of dwelling property in New York City, Yonkers, Mt. Vernon, New Rochelle and White Plains. The "discretionary stay" statute, accordingly, was at the same time amended so as to become applicable only to cities of the first class "having a population of one million or less, "' 8 thus restricting its operation to the cities of Buffalo and Rochester." This special discretionary stay law applies in these cities, in the words of the statute, 10

"only to a summary proceeding. . . to recover the possession of premises occupied for dwelling purposes, other than a room or rooms in a hotel, lodging house, or rooming house, upon the ground that the occupant is holding over and continuing in possession of the premises after the expiration of his term, without permission of the landlord."

The law further states:

"The relief hereby provided shall be in addition to relief provided by any other act the provisions of which are not incon

Chapter VI, supra, page, 49.

Laws of 1920, Chap. 137, effective April 1, 1920. 'Chapter 942, Laws of 1920, supra, Chapter VIII. 8 Laws of 1920, Chap. 948.

'See Black v. Cousins (Mun. Ct., N. Y. City, 5th Dist.), N. Y. L. J., Dec. 28, 1920, p. 1044, wherein Spiegelberg, J., says: "Chapter 137 of the Laws of 1920 was repealed, so far as applicable to New York City, by chapter 948 of the Laws of 1920."

10 Laws of 1920, Chap. 948.

sistent herewith. This act being emergency legislation, its provisions shall be liberally construed to carry out the intent thereof."

In other words, in the cities of Buffalo and Rochester, instead of entirely suspending until November 1, 1922, the right to maintain summary dispossess proceedings against tenants holding over in dwelling property without leases,11 the Legislature has by way of relief given the courts power to stay the execution of dispossess warrants for periods up to one year.

The precise provisions of this stay law may now be discussed. Contrary to the law effective in New York City,12 which has been held to create tenancies of a special nature, sometimes called "statutory tenancies," 13 this "discretionary stay" law provides that the mere presentation of a petition in such summary proceedings to a court having jurisdiction

"shall be an election by the landlord to terminate the tenancy which might otherwise arise by operation of law."

This is in accordance with previously existing law, which permitted a landlord to treat a "holdover" tenant as a trespasser and proceed to oust him.14 But after a final order in such a proceeding is signed and the landlord's right to his property thereby determined, the "discretionary stay" law provides that

11 Excepting in four special classes of cases. See Laws of 1920, Chapter 942, Code of Civil Procedure, § 2231, subd. 1-a; Civil Practice Act, § 1410, subd. 1-a.

12 Laws of 1920, chapter 942, supra, Chapter VIII.

13 1217 Madison Ave. Corp. v. Hyman (City Court of New York City, Callahan, J.), reported in N. Y. Law Journal, May 10, 1921, page 527.

14 See supra, page 58.

"the court, judge or justice making such order, on application of the occupant, may, in its or his discretion and subject to the conditions prescribed by this act, stay the issuance of a warrant and also stay any execution to collect the costs of the proceeding, for such period, not more than twelve months, as the court, judge or justice, in its or his discretion, may deem proper."

The effect is, thus, to grant the landlord's legal rights as they previously existed, but to give the court discretion to postpone the enforcement of these rights.

The law provides that when application is made for such a stay, the court or judge "shall" hear the parties and "may" grant the stay (on conditions that we shall proceed to discuss), if on such hearing it appears, 15

(1) "that the premises described in the petition are used for dwelling purposes;" (2) "that the applicant cannot secure suitable premises for himself and his family within the neighborhood similar to those occupied;" (3)" that he has used due and reasonable effort to secure such other premises;" (4) "that his application is made in good faith and that he will abide by and comply with the terms and provisions prescribed by the court, judge or justice;" or (5) "" that by reason of other facts such action will be warranted."

Under this law, it has been held that where the existence of the conditions the law requires is not established by the tenant by competent evidence, it is improper for a court to grant a stay.16 The language of the Appellate Division was as follows:

15 Laws of 1920, Chap. 948.

10 Blek v. Davis, 193 App. Div. 215, 183 N. Y. Supp. 737. See also Begeleisen v. Smith, (App. Term, 2d Dept., April 25, 1921), memorandum decision, unreported; Targum v. Perlmutter (App. Term, 2d Dept., May 16, 1921), memorandum decision, unreported; Kline v. Kleenan (App. Term, 1st Dept.), 185 N. Y. Supp. 113.