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Recovery of Possession from “Holdover by Ejectment;

by Mandatory Injunction; Status of “Holdover and of New Lessee

We may now quickly dispose of the possessory rights and remedies available under the emergency laws in an ejectment suit against tenants holding over without leases. The limitations affecting actions in ejectment imposed by these emergency laws are applicable only to real property in New York City, Yonkers, Mt. Vernon, New Rochelle and White Plains occupied for dwelling purposes. Elsewere in the State, the action of ejectment survives as it heretofore existed.

It is important to note several distinctions between the emergency law operative until October 1st, 1921, and incorporated in the Code of Civil Procedure, and the form this law will take on that date, when the Civil Practice Act takes effect. The first of these distinctions will be made clear by placing the two laws to which reference has been made in parallel columnsChapter 947, Laws of 1920, Chapter 367, Laws of 1921, 1531-a, C. C. P.

$ 1011-a of Civil Practice Act. "No action shall be “No action. shall be maintainable to recover the maintainable by a landlord possession of real property," &c. against a tenant 4 to recover the

possession of real property," &c.

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1 Laws of 1920, Chapter 947, Code of Civil Procedure, $ 1531-a; Civil Practice Act, $ 1011-a, as amended by Laws of 1921, Chapter 367. ? Laws of 1920, Chapter 947.

g 1011-a, as amended by Laws of 1921, Chapter 367, Italics ours,


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The existing law does not in so many words state that its inhibitions apply only to efforts by a landlord to oust a tenant, and it has therefore been thought by some that it serves to prohibit ejectment suits to put out intruders, squatters, trespassers, or other occupants of real estate who are not tenants in the technical sense of the word. Whether this view is correct has not yet been decided in litigation. In the exception allowing an objectionable "holdover” to be proceeded against in ejectment, the statute employs the word “landlord ” 5—an indication that the Legislature intended to confine the law's application to cases of landlord and tenant. At all events, the law operative after October 1, 1921, sets all doubts at rest by expressly curtailing ejectment suits only in cases where the relation of landlord and tenant exists, and the tenant holds over after his term without a lease.

The restriction placed by these emergency laws upon ejectment suits will continue, according to the present reading of the law, only till November 1, 1922. Until that date, the law declares that ejectment actions shall not be "maintainable” to recover the possession of real property occupied for dwelling purposes in the cities previously named, except in three cases: Where the person is holding over and is objectionable, where the owner seeks “in good faith to recover possession . . . for the immediate and personal occupancy of himself and his family as a dwelling," and where the premises are to be demolished and a new building erected. The language defining each of these three classes of exceptions is identical with the language used in the law restricting summary proceedings against holdovers, which we have previously considered, and all the decisions

5 See Chap. 947, Laws 1920, Appendix B, and Chap. 367, Laws 1921, Appendix B.

which we have cited as interpretative of the law prohibiting summary proceedings against holdovers, are applicable to the interpretation of the corresponding provisions of the law restricting ejectment actions which we are now considering.

It will be noted that no exception is made in this latter law in favor of so-called “co-operative" apartments. This was apparently an omisssion, for in the law operative after October 1, 1921,6 a fourth class of exceptions, relating to such apartments, was inserted, in language almost identical with the language used in the emergency law relating to summary proceedings.?

It remains to be said that apparently this prohibition of ejectment actions applies only to new actions, and not to actions “pending" at the time this law went into effect, September 27, 1920. The law says merely that,

"A public emergency existing, no action as prescribed in this article shall be maintainable. . and includes no provision such as the summary proceedings statute contains, as to "pending" actions. By familiar doctrines of statutory construction, this must be held to indicate, at least until there is a conclusive judicial determination to the contrary, that the Legislature did not intend to interfere with ejectment actions "pending” on September 27, 1920.


To avoid the effect of the emergency laws in depriving landlords of their usual right to recover possession of their •Civil Practice Act, $ 1011-A, as amended by Laws of 1921, Chapter 367.

Laws of 1920, Chapter 942, Code of Civil Procedure, $ 2231, subd. l-a; Civil Practice Act, $ 1410, subd. 1-a.


property on the expiration of a tenant's lease, legal expedients have been invoked without avail. The chief of these, perhaps, has been the effort to persuade the Supreme Court, by the exercise of its equitable powers, to grant mandatory injunctions for the removal of tenants.

tenants. Most apartment leases contain an agreement on the part of the tenant to surrender possession of the premises leased to him at the end of his term. In normal times, this agreement could be enforced either by summary proceedings or an ejectment action. The emergency laws 8. having suspended both these legal remedies until November 1, 1922, the landlords appealed to the courts for mandatory injunctions to enforce such agreements to surrender possession. Such applications have been numerous, and have been uniformly denied, generally upon the theory that courts of equity will not thus, by indirection, thwart the expressed intent of the Legislature. Some of these efforts are still pending on appeals to higher courts.


Another interesting question, not yet passed upon by the courts, concerns the status and liability of a holdover tenant who relies upon the emergency laws to protect his occupancy, but is dispossessed because his landlord is able to bring himself within one of the exceptions to these laws, or to prove that the tenant is not entitled to their protection. During the period of his occupancy as a “holdover,” is such a tenant a trespasser, liable for damages as he would have been, at the

8 Laws of 1920, Chaps. 942 and 947.

· Sperling v. Barton (Hotchkiss, J.), N. Y. L. J., Nov. 3, 1920, page 399; Versailles Holding Corp. v. Stein (McAvoy, J.), N. Y. L. J., Nov. 27, 1920, page 683; Brandt v. Weil (Mullan, J.) 113 Misc. 320, 185 N. Y. Supp. 497; Levell v. Leggett (Faber, J.), N. Y. L. J., Oct. 13, 1920, page 148,



landlord's election, prior to the operation of the emergency laws, 1° or is he what has been called a "statutory” tenant during such period, liable only for a reasonable rental?11 It would seem that the emergency laws were intended to protect all residential tenancies; that the landlord's ability to bring himself within one of the exceptions to these laws is in the nature of a right arising after the "statutory” tenancy in the tenant's favor has arisen; and that, therefore, for the period of his occupancy as a “holdover” in such a case, the tenant should have all the rights of a "statutory” tenant under the emergency laws. But where the tenant claims, for instance, that the property he occupies is residential property, and the landlord establishes that it is not and secures a dispossess warrant, it would seem that the tenant never at any time was entitled to the protection of the emergency laws, and that his holding over may be treated, if the landlord' so chooses, as a trespass.


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A question frequently raised is as to the right of new tenants, to whom the landlord has given a lease, despite the fact that there is in occupancy of the premises a tenant who refuses to remove.

Obviously, unless the landlord can bring himself within one of the four classes of exceptions hereinbefore mentioned, he cannot put the old tenant out. The holder of the new lease has never had a legal right to do so, at least by summary proceedings; 12 nor do the emergency laws confer any spe

10 Supra, page 58; De Camp v. Bullard, 159 N. Y. 450; Pappenheimer v. Metropolitan Ry. Co., 128 N. Y. 436; Sheldon v. Baumann, 19 App. Div. 61.

11 Paterno Realty Co. v. Hattenbach (App. Term, 1st Dept.), 115 Misc. 400, 188 N. Y. Supp. 444; 1217 Madison Ave. Corp. v. Hyman (City Court, Callahan, J.), N. Y. L. J., May 10, 1921, page 587. People ex rel, Durham Realty Co v. La Fetra, 230 N. Y. 429, cited.

11 Eels v. Morse, 208 N. Y. 103,

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