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ground sufficient for the Supreme Court to grant a landlord's application for a peremptory writ of mandamus directing the issuance of a dispossess warrant.21

It should be noted that the law prevents landlords from effectually compelling tenants to waive its benefits. A subdivision thereof 22 provides that

“Any provision of a lease whereby a lessee or tenant waives any provision of this act shall be deemed against public policy and void.”

It may be stated, in passing, that none of the other emergency laws contains an analogous provision, expressly invalidating an attempted waiver of its benefits.

The question has been raised whether this law permits the courts to grant successive stays, one after another, provided they do not together total more than twelve months, or whether only one stay may be granted thereunder. The language of the statute appears to contemplate only one stay, but is sufficiently indefinite to permit of the other construction. While there have been numerous cases in the municipal courts of New York City in which several successive stays have been granted, no opinion upon the subject has been found.

A procedural problem has been presented to attorneys under this law, as to the manner of appeal from a stay order improperly granted by the New York City Municipal Court. It has been held that such an order is not of the kind directly appealable; that an appeal should be taken from the final order in the summary proceeding, the notice of appeal

11 People ex rel. Roth v. O'Leary (Kings County, Manning, J.), N. Y. Law Journal, November 9, 1920, page 473; sec supra, p. 123.

22 Laws of 1920, Chap. 948, subd. 7.

specifying that a review of the stay order is wanted. 23 It has also been held that an appeal will not lie directly from an order either granting or denying a landlord's motion that the clerk be directed to deliver a dispossess warrant.24 The first of the cases cited holds that if the clerk refuses to deliver a warrant when in duty bound so to do, the landlord's remedy is to compel such action by a writ of mandamus. The tenant's remedy would seem to be to appeal from the final order and secure a stay pending appeal. If no stay is granted, and the appeal succeeds, an order of restitution is necessary to restore the tenant's rights. 25


There have been a number of decisions relating to warrants which are relevant here and of practical importance. We have already seen that it is the issuance of the warrant in summary proceedings which terminates the relationship of landlord and tenant, and no prior step in the proceedings.28 A warrant may only be issued upon a formal final order in a summary proceeding entered as prescribed by law.27 No informal order or agreement between the parties, even though ratified by a justice of a court, will suffice, and the issuance of a warrant upon such inadequate papers will be prevented by injunction.28

23 Kuenzli v. Stone (App. Term, 2d Dept.), 112 Misc. 125, 182 N. Y. Supp. 680; Margolies v. Laird, 186 N. Y. Supp. 448.

24 Tauszig v. Kantor (App. Term, 1st Dept.), 115 Misc. 366, 188 N. Y. Supp. 92; Weiner v. Spielman (App. Term, 1st Dept.), 189 N. Y. Supp. 97.

26 See supra, page 75.

% Tauszig v. Kantor, 115 Misc. 366, 188 N. Y. Supp. 92, supra, page 73. See also Sea Gate Hotel Co. v. Nahmmacher, 112 Misc. 100, 182 N. Y. Supp. 566, at page 570, holding that rent is payable for the period between the final order and the issuance of the warrant.

27 Code of Civil Procedure, $ 2249; Civil Practice Act, $ 1430.

» Katz v. Haggerty (Supreme Court, Bronx county, Martin, J.), reported in N. Y. Law Journal, April 2, 1921, page 26.

Where a warrant is properly issued in the first instance, it has been held that a judge or court has no legal authority thereafter to vacate it, except in the one case where it has been granted on an order made upon the tenant's default; this exception being created by one of the “permanent” emergency laws. 29 In other than default cases, the municipal courts having jurisdiction of summary proceedings may only grant such stays as the laws permit, but may not vacate a warrant, once it is properly issued. 30

Where a warrant is issued by a clerk without authority, there exists, by virtue of two recent conflicting decisions by different tribunals, in litigations involving the same parties, a rather puzzling situation for the practitioner. The original litigation was a summary proceeding, in which the issuance of the warrant was stayed, under authority of the “discretionary stay” law, until October 1, 1920. Before that, the emergency laws of September 27, 1920, became effective, and the tenant correctly claimed that the proceeding was "pending" and a warrant might not issue. Despite this, the clerk of the Municipal Court in which the case had been tried issued a warrant and delivered it to the marshal for execution. Thereupon, the tenant brought an action in the equity part of the Supreme Court for an injunction to restrain the execution of the warrant, claiming that the law conferred no power on the Municipal Court to vacate the warrant, and that he was therefore without adequate remedy unless the injunction

29 Laws of 1920, Chap. 950, Code of Civil Procedure, 8 2265-a; Civil Practice Act, & 1447.

30 People ex rel. Halperin v. Strahl (Supreme Court, Kings County), 113 Misc. 23, 184 N. Y. Supp. 710; Myers v. Cohen (App. Term, 1st Dept.), 186 N. Y. Supp. 606; Frankenthaler v. Dreyfuss (App. Term, 1st Dept.), 188 N. Y. Supp. 458. See also infra, page 247.

was granted. The court 31 refused to grant the injunction, stating:

“The Municipal Court has refused to vacate the warrant of dispossess issued by the clerk, declaring that it has no power so to do. With that I am not in accord. The Municipal Court is a court of record and the justices of the respective districts have ample power to amend its records, even after judgment, so that the rights of parties litigant may not be prejudiced. If the clerk of the court has, in violation of the instructions of his superiors, issued a warrant to dispossess, that court has ample power to rectify the error. The duties of the clerk are ministerial, and he does not possess any judicial discretion. To grant an injunction would in effect be to review the acts of the justice of the Municipal Court, and there is no provision in the statutes for such practice.”

Thereupon the tenant asked the Municipal Court to vacate the warrant. That court promptly held that it had no power to do so. The tenant appealed, and was informed 32 that

“the court below properly held it had no power to vacate a warrant. However, the clerk had no authority to issue the warrant. The appellant (tenant) has ample remedy against any public official who attempts to execute it. It is not a process of the court."

With due deference to this opinion, it may be said that the logic of Judge Cohalan appears more convincing and reasonable. Admitting that the Municipal Court has no power to vacate a "warrant,” it does not follow that it is impotent to nullify the unauthorized act of one of its subordinate officials, in issuing something in semblance its warrant, but in fact not its mandate at all. To relegate the victim in such

31 Dreyfuss v. Frankenthaler (Supreme Court, N. Y. County, Cohalan, J.), reported in N. Y. Law Journal, December 21, 1920, page 978.

* Frankenthaler v. Dreyfuss (App. Term, 1st Dept.), 188 N, Y. Supp. 458.

a case to an alleged "ample remedy," presumably an action against the offending official, is to impose a needless burden

upon him.

We have seen that one of the “permanent” emergency laws 33 permits the court in which the proceedings originated to grant stays of execution of warrants on appeal in summary proceedings against “holdover " tenants. This right previously existed only in reference to “non-payment” proceedings. The appellate court, however has the right to grant such stays “in any case."34 Certain provisions as to giving security for rent or otherwise protecting the landlord pending the appeal are provided in the law.

Under this law, it has been held that the court of origin has power to stay the execution of the warrant on appeal only in the two classes of proceedings, “holdover” and “non-payment, ” in which the right is expressly conferred by statute; and that it has no such power where the tenant was dispossessed on the ground that he was objectionable. 35

Where the appellate courts grant stays of execution of warrants pending appeal, it has been customary to require as a condition of such stay that the tenant continue regularly to pay rent at a rate specified by the court while the appeal is pending. 36

33 Laws of 1920, ch. 943.

34 Id.

36 Futor v. Ernst (County Court, Queens Co., Humphrey, J.), N. Y. Law Journal, March 3, 1921, page 1880.

36 Traymore Leasing Co. v. Morton (App. Term, 1st Dept.), N. Y. Law Journal, Feb. 16, 1921, page 1702; Rose v. Kelley (App. Term, 1st Dept.), N. Y. Law Journal, Feb. 24, 1921, page 1790.

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