was the subject of an action," but the court did not have the right to "determine the amount of rent due the petitioner," or to "make such other proper disposition as shall determine the rights of the parties," or to "give affirmative judgment for the amount found to be due upon the counterclaim."

What some of the cases have held to be available as defense or counterclaim by virtue of the foregoing provisions of the law may here be briefly referred to. The Statute of Frauds in New York requires a lease of a longer duration than a year to be writing. A tenant made an oral threeyear lease to pay rent at the rate of $85 a month. The old landlord sold the property, and the new owner promptly demanded $100 rent, and on the tenant's refusal to pay, brought a non-payment dispossess proceeding. The court held that the oral lease, while not provable in an action at law, could be interposed as an equitable defense to the proceeding. 22

In another case, 23 the tenant claimed by way of equitable defense that the landlord had agreed to give him a renewal lease upon the same terms as his previous one. The court sustained this defense, stating:

"While, of course, the Municipal Court cannot grant affirmative relief, it can, in entertaining an equitable defence, go as fully as a court of equity can go into all the facts attending the making of the lease, to open the door to all the equitable defences, and if it finds that the tenant is equitably entitled to a renewal of the lease, it can dismiss the proceedings and direct judgment awarding possession of the premises to the defendant."

22 Osterweil v. Faldo (Mun. Court, N. Y. City, Genung, J.), reported in N. Y. Law Journal, November 19, 1920. See also Delk Realty Co. v. Rubin (App. Term, 1st Dept.), 112 Misc. 178, 182 N. Y. Supp. 786, 790. 23 Burgener v. O'Halloran (App. Term, 2d Dept.), 111 Misc. 203, 181 N. Y. Supp. 235.

In another case, the tenant occupied business property. The landlord entered into a contract to sell the property. The prospective owner sent a notice to terminate the tenant's lease, which contained a cancellation clause. Later, having acquired title, the new owner brought summary "holdover" proceedings to put the tenant out. It was held on appeal that the tenant could set up by way of equitable defense in these proceedings, (1) that the notice of cancellation was improper and void, because not given by the party then the owner of the premises; (2) that (assuming the notice to be valid) the landlord, having accepted rent after the expiration of the notice, thereby waived the notice and readopted the tenant.24

It has been held that where a landlord by his own act deprives the tenant actually of the use or enjoyment of a material part of premises leased, he cannot while such deprivation, technically called an "eviction," continues, recover any part of the rent.25 Accordingly, in two recent summary proceedings for non-payment of rent, it has been held, there being such an actual partial eviction, that the tenant could interpose such eviction and the suspension of rent during the continuance thereof as a defense; and accordingly the proceedings were in each case dismissed. 26

In an important recent case,27 a summary proceeding was brought in the New York City Municipal Court for the non-payment of rent amounting to $7,583.31, together with

24 Huyler's v. Broadway-John St. Corp., 195 App. Div. (1st Dept.) 410, 186 N. Y. Supp. 290.

25 Fifth Avenue Building Corp. v. Kernochan, 221 N. Y. 370.

Kerrigan v. May (App. Term, 1st Dept.), 188 N. Y. Supp. 774; Econopouly v. Hamerman (Mun. Court, N. Y. City, Panken, J.), 185 N. Y. Supp. 291.

"Broadway & 94th Street, Inc., v. C. & L. Lunch Co. (Mun. Court, N. Y. City, Spiegelberg, J.), reported in N. Y. Law Journal, August 20, 1921.

interest and small additional items, bringing the total up to $8,954.81. The tenant interposed a counterclaim for damages of $16,000 caused by the landlord's breach of certain covenants in the lease. The court, in a thoughtful opinion, held that the jury's verdict for the tenant for the difference, $7,045.19, was appropriate and could be entered as the judgment of the court in the procceding by virtue of the law we are considering, 28 even though in an ordinary action the Municipal Court's jurisdiction is limited to $1,000.

Defenses and rights such as the foregoing, being provided for in "permanent" sections of the law, 29 will survive the termination, on November 1, 1922, of the "temporary" emergency law we now have under consideration. It should be particularly noted, however, in view of what has been said above about counterclaims, that no right exists to enter judgment on a counterclaim for more than one thousand dollars in an "action," as distinguished from a summary proceeding," in the Municipal Court of New York City.3

"TEMPORARY" DEFENSE OF "UNREASONABLENESS

30

In addition to the "permanent " defenses, we have the special, "temporary emergency defense based upon the contention that the rental demanded is "unjust and unreasonable and that the agreement under which the same is sought to be recovered is oppressive." This defense is the one afforded by the emergency law 31 relating to actions for rent or rental value. The language conferring the right

28 Laws of 1920, Chapter 132.

29 Code of Civil Procedure, § 2244; Civil Practice Act, § 1425.

30 See Broadway & 94th Street, Inc., v. C. & L. Lunch Co., N. Y. L. J., Aug. 20, 1921.

1 Chapter 136, Laws of 1920, as amended by Chapter 944, Laws of 1920, and Chapter 434, Laws of 1921.

to interpose this special emergency defense of "unreasonableness" in " "non-payment summary proceedings is under the present statute 32 as follows:

"All the provisions of chapter 136 of the laws of 1920, as amended, shall apply to a proceeding brought under this subdivision so far as applicable and not in conflict with the provisions of this subdivision and other provisions of statute governing summary proceedings to recover the possession of real property."

To gain an understanding of what this signifies, the reader will have to refer to the present amended form of Chapter 136 of the Laws of 1920: that being, as has been previously stated, Chapter 434 of the Laws of 1921.33

The next chapter is devoted to analysis and interpretation of this law, the so-called "reasonable rent" statute. Obviously, repetition is not necessary here. The salient points, however, may be noted. A deposit of rent must be made by the tenant interposing the defense; 34 the landlord must file a special statutory bill of particulars; 35 a presumption of unreasonableness and oppressiveness of the rental demand arises if the rent called for is greater than it was "one year prior to the time of the agreement under which the rent is sought to be recovered"; 36 a "fair and reasonable rent for the premises" may be pleaded and proved by the landlord in the

32 Laws of 1921, Chapters 374 and 371, amending the Code of Civil Procedure, § 2231, subd. 2-a, and the Civil Practice Act, § 1410, subd. 2-a, respectively.

"See Appendix B.

34 Laws of 1921, Chapter 434, section 1, subd. 6. See 400 Manhattan Ave. Corp. v. Danziger (Mun. Ct., 7th Dist., Crane, J.), 114 Misc. 79, 186 N. Y. Supp. 678; see also infra, page 248 et seq.

35 Laws of 1921, Chapter 434, section 1, subd. 2. See also, infra, page 160 et seq.

"Id., subd. 3. See also, infra, page 185 et seq.

37

proceeding " and the court may then "determine the amount of rent due" and give judgment therefor; 38 such adjudication is determinative in any subsequent proceeding involving the rental value of the premises, unless new facts affecting the same are pleaded and proved; " in case of an appeal by the tenant, the rent adjudicated must be deposited with the clerk each month "until the final determination of the appeal"; 40 the defense of "unreasonableness" and "oppressiveness" is not available to the tenant if he has paid three successive instalments of rent after the commencement of the term of the lease which is claimed to be unreasonable and oppressive and after April 30, 1921, when the amended law took effect.41

Each of these phases of the law is treated in detail in the next Title. If the defense of "unreasonableness" and "oppressiveness" is raised in a summary proceeding for non-payment of rent, the reasoning and decisions there contained may generally be referred to as applicable.

The question has been raised whether a summary proceeding for non-payment of rent may be maintained where there is already pending an action at law for the recovery of the same rent, and what deposit is in such case required to satisfy the emergency law, unreasonableness being pleaded by way of defense both to the proceeding and to the action. The court to which this question was presented held that nothing in the law prevented the landlord from bringing an action for the recovery of rent and in a proper case maintaining a

37 Id., subd. 4. See also, infra, page 193.

38 Code of Civil Procedure, § 2244, as amended by Laws of 1920, Chap. 132; Civil Practice Act, § 1425; infra, pages 193-4.

39 Laws of 1921, Chap. 434, section 1, subd. 7. See infra, pages 158-159, 40 Id., subd. 9.

41

Id., subd, 1,