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Next, it may be noted that the emergency law initially enacted, on April 1, 1920, was more liberal in allowing summary proceedings for non-payment of rent to be brought than the present law. It permitted such proceedings where it was alleged in the petition and proved

"that the rent of the premises described in the petition is no greater than the amount paid by the tenant for the month preceding the default for which the proceeding is brought or has not been increased more than twenty-five per centum over the rent as it existed one year prior to the time of the presentation of the petition."14

The so-called "twenty-five per cent rule” involved in this law was so widely misunderstood by tenants on the one hand, and abused on the other by landlords, who regarded it as a license to raise their rents that percentage, that it was abolished at the special session of the Legislature in the fall of the year 1920. The present law was substituted in the shape of an amendment. Summary proceedings for non-payment are thereby prohibited, except where petition and proof show that the rent is "no greater than the amount for which the tenant was liable for the month preceding the default for which the proceeding is brought.” 15

During the short interval when the April, 1920, law was operative, the question arose whether it required allegation and proof both that the rent was no greater than the amount paid the preceding month, and that it was not over twentyfive per centum more than it had been a year previously; or whether these conditions were alternative, so that the

14 Laws of 1920, Chapter 139.

15 Laws of 1920, Chapter 945, effective September 27, 1920; subsequently amended by Laws of 1921, Chapter 374, but not changed in respect to this provision.

landlord could maintain the proceeding if either contingency existed. The statute employed the word "or," and accordingly it was held, in a decision now determinative of the law, that it was sufficient if either state of facts were established. 16

Before proceeding to the defenses permissible in a summary proceeding for non-payment under the existing law, it should be further noted that this law provides as follows:

"This subdivision shall not apply to a room or rooms in a hotel containing one hundred and twenty-five rooms or more, or a lodging house, or rooming house, occupied under a hiring of a week, or less."


What constitutes a "hotel" thus exempted from the operations of the emergency law has been authoritatively set forth in a recent case involving a so-called "apartment hotel” in New York City, called the “George Washington.” 17 Excerpts from the opinion in this case are worth quotation here at length:

“There is no doubt that a distinction is made in the statute) between apartment houses, so-called, and apartment hotels, socalled. Apartment houses are generally understood as those houses which contain apartments to which is attached a kitchen, wherein it is contemplated that the family shall do its own cooking. An apartment hotel, so called, is generally understood to apply to those houses which contain non-housekeeping apartments, without a kitchen or cooking facilities, wherein the proprietor furnishes a restaurant for feeding the occupants of the different apartments. Within this terminology the George Washington might be classed as a hotel, because the apartments were rented without cooking facilities and without kitchens. The room service was furnished by the owner of the apartment. The care of the rooms was provided by the proprietor, and not by the individual tenants, and it may be strongly argued that there were present full hotel accommodations. But, with these facts acknowledged, the question is not fully answered as to whether what is generally called an apartment hotel is within the contemplation of the law, which excepts hotels from the operation of the act in question.

16 Shanik v. Eckhardt (App. Term, 2d Dept.), 112 Misc. 86, 183 N. Y. Supp. 155, in effect overruling earlier decisions of the lower court to the contrary, among other cases, Horn v. Klugman (Mun. Ct., Brooklyn, Bogenschutz, J.), 112 Misc. 171, 183 N. Y. Supp. 150, reversed in 184 N. Y. Supp.


19 Waitt Construction Co. v. Chase (App. Div., 1st Dept.), 188 N. Y. Supp. 589.

“The hotel, in its primary significance, was the old inn, which is well defined as å 'house of entertainment for travelers,' or 'a house where a traveler is furnished, as a regular matter of business, with food and lodging while on his journey.'

"It is true that upon the evidence this George Washington had 15 rooms for transients. The remaining rooms were not furnished by the owner of the apartment, but were furnished by the tenants. The logical inference that can be drawn from the provision that the act does not apply to a hotel containing 125 rooms or more is that such a hotel must contain 125 rooms or more for hotel purposes; that is, for use by or in connection with the entertainment of transient guests in accord with the primary meaning of the word 'hotel.' If a building which was occupied for a hotel contained rooms not fitted up for hotel purposes, such rooms in my judgment should not be included in the number of 125 rooms required in a hotel in order to exempt such building from the provision of the statute. If the use of these 15 rooms for hotel purposes gives this building the character of a hotel, so as to exempt it from the laws of 1920, the use of 10 rooms for hotel purposes would also exempt it. The use of 5 rooms, or the use of 2 rooms would exempt it. To hold that the use of any number of rooms for hotel purposes would bring the building within the exemption of the statute, because it had 125 rooms used for other

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purposes than hotel purposes, would be against all reasonable interpretation of the statute.

“If we grant, therefore, that, as far as these 15 rooms kept for transients, the George Washington was kept as an inn or hotel within the meaning of the statute, inasmuch as 125 rooms were not kept for hotel purposes, the plaintiff does not come within the exception in the statute."


The law also provides that:

This subdivision, as amended, shall not apply to a new building in course of construction September twenty-seventh, nineteen. hundred and twenty, or commenced thereafter, and shall be in effect only until the first day of November, nineteen hundred and twenty-two."


Assuming that the landlord is able under the law to maintain a summary proceeding to dispossess for non-payment of rent, the emergency laws give the tenant the right to interpose a number of defenses.

First, we may consider that provision of the statute with which we are dealing 19 which declares that:

“Nothing in this subdivision shall preclude the tenant from interposing any defense that he might otherwise have.

18 Chap. 371, Laws of 1921.

19 Code of Civil Procedure, 8 2231, subd. 2-a, as amended by Laws of 1921, Chap. 374; Civil Practice Act, $ 1410, subd. 2-a, as amended by Laws of 1921, Chap 37.


The defenses that the tenant "might otherwise have" are set forth, it will be recalled, in one of the "permanent” emergency laws, 20 as follows:

“At the time when the precept is returnable ... the person to whom it is directed . .. or any person in possession or claiming possession of premises, or a part thereof, may answer, orally or in writing, denying generally the allegations, or specifically any material allegation of the petition, or setting forth a statement of any new matter constituting a legal or equitable defence, or counterclaim. Such defence or counterclaim may be set up and established in like manner as though the claim for rent in such proceeding was the subject of an action. If the court finds that a defence or counterclaim has been established in whole or in part, it shall, upon rendering a final order, determine the amount of rent due to the petitioner or make such other proper disposition as shall determine the rights of the parties, and may give affirmative judgment for the amount found to be due on the counterclaim. If such answer be oral the substance thereof shall be endorsed upon the petition.”

This law applies, it should be noted, to all classes of summary proceedings—against “holdovers,” for “non-payment," or otherwise.

The law prior to the enactment of this recent amendment permitted the tenant to interpose in his answer to the dispossess proceedings "any new matter constituting a legal or equitable defense, 21 or counterclaim, . .. in like manner as though the claim for rent in such proceedings

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20 Laws of 1920, Chapter 132, amending Code of Civil Procedure, $ 2244; Civil Practice Act, § 1425. See supra, page 39 and infra, Appendix A.

21 See Geller v. Kings County Mtge. Co., 97 Misc. 707; Simon v. Schmitt, 137 App. Div. 625.

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