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cial rights upon him. It appears clear, therefore, that the fact that such a new lease has been given does not affect the possessory rights of the holdover tenant in possession.
If the holder of the new lease has, as frequently is the case, made a deposit on account thereof, it has been held that he may recover the same from the landlord, upon the latter's failure to deliver possession upon the date stipulated.13 The failure to give possession creates a failure of consideration for the deposit.
There is an intimation in another recent case, also, that the landlord's inability to give the new tenant possession makes the new lease voidable. If the new tenant does not take steps to have his lease declared void, the case holds that he, and not the landlord, is the one entitled to receive or maintain an action for the rent or rental value against the old tenant who continues in possession.14
13 Goldsmith v. Marcus Brown Holding Co. (Mun. Ct., 5th Dist., Spiegelberg, J., April 18, 1921), not yet reported.
14 Durham Realty Corp. v. Ansbacher (City Court of N. Y., Schmuck, J.), N. Y. Law Journal, July 16, 1921, page 1279.
Effect of Emergency Laws on Dispossess for Non-payment
We have now completed our survey of the emergency laws so far as they affect the landlord's right to put out tenants holding over without leases, whether by summary proceedings or by actions of ejectment.
There exists another important class of cases in which the landlord's rights to recover possession of real property occupied for dwelling purposes have been considerably curtailed by the emergency laws: cases where the tenant is sought to be removed upon the ground of non-payment of rent. We have seen that previously to the enactment of these laws, the landlord had the right to bring summary dispossess proceedings against a tenant failing to pay the rent. Where six months' or more rent was in arrears, and the lease provided for re-entry by the landlord in the event of failure to pay rent, the landlord could bring an ejectment action, the law ? providing:
“When six months' rent or more is in arrear, upon a grant reserving rent, or upon a lease of real property, and the grantor or lessor, or his heir, devisee, or assignee, has a subsisting right by law to re-enter for the failure to pay the rent, he may maintain an action to recover the property granted or demised, without any demand of the rent in arrear or re-entry on the property."
Supra, page 59.
Both the summary proceedings to dispossess for non-payment of rent and the ejectment action above referred to may be halted at any stage prior to issuance of the warrant, in summary proceedings, or the filing of the judgment-roll, in the ejectment action, by payment of the rent in arrear, interest and statutory costs. Such payment, in the case of summary proceedings, must be made to the clerk of the court; 3 in the case of an ejectment suit, it may be made or tendered to the plaintiff, or his attorney, or into court."
It has been held that a warrant issued after such payment of rent is issued without jurisdiction and therefore is void and ineffectual to cancel a lease. 5
The ejectment action above mentioned for non-payment of rent is not referred to in the emergency laws, and apparently remains unimpaired thereby. Radical changes have been made, however, in the right to bring summary proceedings for non-payment of rent.
“NON-PAYMENT” SUMMARY PROCEEDINGS The right to institute such proceedings existed heretofore, in the language of the statute, where a tenant held over, without permission of the landlord, "after a default in the payment of rent, pursuant to the agreement under which the demised premises are held, and a demand of the rent has been made, or at least three days' notice in writing re
3 Code of Civil Procedure, $ 2254; Civil Practice Act, $ 1435. See Mont-, rose Farms, Inc., v. Rogerson (App. Term, 1st Dept.), 183 N. Y. Supp. 34.
Code of Civil Procedure, $ 1506; Civil Practice Act, $ 999. 6 Newcombe v. Eagleton, 19 Misc. 603. • Code of Civil Procedure, $ 2231, subd. 2; Civil Practice Act, $ 1410, subd. 2.
quiring, in the alternative, the payment of the rent, or the possession of the premises, has been served, in behalf of the person entitled to the rent, upon the person owing it, as prescribed in this title? for the service of a precept."
The emergency law 8 provides that no such summary proceeding for non-payment of rent
"shall be maintainable to recover the possession of real property in a city of the first class, or in a city in a county adjoining a city of the first class, occupied for dwelling purposes, unless the petitioner alleges in the petition and proves that the rent of the premises described in the petition is no greater than the amount for which the tenant was liable for the month preceding the default for which the proceeding is brought."
It will be noted, to begin with, that while this emergency law is only applicable, just as the one curtailing summary proceedings against “holdovers” without leases, to "real property occupied for dwelling purposes,” it has a wider territorial applicability, in that it applies to all cities of the first class in New York State. The State Constitution provides:
“All cities are classified according to the latest census enumeration, as from time to time made, as follows: The first class includes all cities having a population of one hundred and seventyfive thousand or more.”
Under this definition, and according to the 1920 census, Buffalo and Rochester, cities in Erie and Monroe Counties,
Code of Civil Procedure, $ 2240; Civil Practice Act, § 1421. In the Civil Practice Act, the word "article" is used instead of "title."
* Laws of 1920, Chapter 945, Code of Civil Procedure, $ 2231, subdivision 2-a, as amended by Laws of 1921, Chapter 374; Civil Practice Act, $ 1410, subdivision 2-a, as amended by Laws of 1921, Chapter 371.
• Article XII, 82.
are included in the operation of this law, as well as New York, Yonkers, Mt. Vernon, White Plains and New Rochelle, to which the “holdover" emergency laws apply.
The next point to be noted is one of procedure: that in a summary proceeding brought under this law, the landlord must not only prove at the trial, but he must "allege in his petition” as well, that the rent of the premises sought to be recovered is "no greater than the amount for which the tenant was liable for the month preceding the default for which the proceeding is brought.” In one of the cases we have previously considered, 11 there is a distinction in this respect drawn between the emergency statute we have previously considered, relating to "holdovers," and the present "non-payment” proceeding statute. The former requires ‘ proof of the jurisdictional faots, but not their allegation in the petition; the latter requires both.12 In another case,
it has been held that the petition in a “non-payment proceeding is “fatally defective," where it fails to contain the allegation that "the rent of the premises described in the petition is no greater than the amount for which the tenant was liable for the month preceding the default for which the proceeding is brought,” and therefore the proceeding must be dismissed.13 The decision intimates that the tenant may possibly waive the defect in the contents of the petition by proceeding to trial without objecting thereto, but holds that failure of proof of the requisite facts at the trial is fatal.
10 It may here be noted that Chapter 953 of the Laws of 1920 deprives justices of the peace of the city of Yonkers of jurisdiction of summary proceedings to recover the possession of real property, as well as of actions for the rent or rental value thereof.
Kaplan v. Bernstein, 115 Misc. 413, 188 N. Y. Supp. 350, supra, page 85. 12 See Chapter VIII, supra, pages 85-86, and foot-note 8, supra, and text of law following.
13 Spinelli v. Michelli (App. Term, 1st Dept.), 188 N. Y. Supp. 321.