6

It will be remembered, from what has been said in a previous chapter," 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," 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5th Dist.), N. Y. L. J., Dec. 28, 1920, p. 1044, wherein Spiegelberg, J., says: "Chapter 137 of the Laws of 1920 was repealed, so far as applicable to New York City, by chapter 948 of the Laws of 1920."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."

11

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.

16 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.

"Upon the record presented to this court there was no evidence before the learned county judge authorizing him, in his discretion, to grant any stay. There was no evidence that the tenant 'cannot secure suitable premises for himself and his family within the neighborhood similar to those occupied,' or 'that he used due and reasonable effort to secure such other premises.'

"The statement in the affidavit submitted by the tenant that he has 'made most diligent effort' to obtain apartments is a conclusion, without any facts stated to support it. He refers to 'communications by real estate agents and brokers showing that the tenant's name is listed in their respective offices, and that each of them has been unable to secure an apartment for the tenant.' The 'communications' are not in the record, and at most would be hearsay, and furnish no evidence as to what efforts have been made, or the reason why, if made, they have been unsuccessful. These facts must be shown to the court by evidence in a legal way, to be the basis of the exercise of judicial discretion, with the drastic results provided for in the statute. In this case the landlord appellant is deprived of his property after the expiration of the lease for the term of three months. The law does not mean that this may be done as a matter of course."

The Appellate Term in New York City has similarly held that a stay under this emergency law was improperly granted where there was "not a line of evidence in the case on appeal to the effect that the tenant has made any effort to secure other apartments, although his lease has expired." 17 In one case, the tenant occupied premises for both business and residential purposes, and applied for a stay under the emergency law upon the ground that he could not secure "suitable similar premises in the neighborhood." The court held that there was a grave doubt whether the emergency laws applied to the property at all; but, assuming

17 Ottinger v. Manoff (App. Term, 1st Dept.), 185 N. Y. Supp. 68.

that they did, "then surely, in considering whether the tenant can find suitable similar premises in the neighborhood, the fact that he is conducting his business on the premises cannot be taken into consideration. Suitable similar premises for dwelling purposes could be found in the neighborhood." 18

The law provides 19 that such a stay

"shall be granted and continue effective only upon the condition that the person against whom the final order is made shall make a deposit in court of the entire amount, or such instalments thereof from time to time, as the court, judge or justice may direct, for the occupation of the premises for the period of the stay, at the rate to which he was liable as rent for the month immediately prior to the expiration of his term or tenancy plus such additional amount, if any, as the court, judge or justice may determine to be reasonable; such deposit shall also include all rent unpaid prior to the period of the stay. The amount of such deposit shall be determined by the court, judge or justice at the hearing upon the application for the stay, and such determination shall be final and conclusive in respect to the amount of such deposit, and the amount thereof shall be paid into court, in such manner and in such instalments, if any, as the court, judge or justice may direct."

Another subdivision 20 specifies that

"the clerk of the court, if there be one, and otherwise the judge or justice, shall pay to the landlord or his duly authorized agent the amount of such deposit, in accordance with the terms of the stay, or the further order of the court."

It has been held that the failure of the tenant to deposit rent where a stay has been granted him under this law is

18 Knowles v. Oeschner (App. Term, 1st Dept.), 113 Misc. 525, 185 N. Y. Supp. 90.

19 Laws of 1920, Chap. 948, subd. 5.

20 Laws of 1920, Chap. 948, subd. 6.