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a lease of premises made before April 1, 1920, when the law became operative, we necessarily approved of the conclusions of the learned Special Term justice that the Rent Laws had no retrospective application. We find no reason for changing our views in that respect. The constitutionality of the Rent Laws was, of course, based upon the legislative finding of an existing emergency, and it may be fairly assumed that the conditions which called upon the Legislature to declare the existence of the emergency prevailed for some time before such legislative declaration. But we nevertheless cannot give restrospective effect to such legislation unless the Legislature in unmistakable terms stated that prior leases made under conditions similar to those existing when the emergency legislation was passed shall come within its provisions. If appellant's contention be sound it would be necessary in each case where a lease was made prior to April 1, 1920, to determine the conditions prevailing when the lease was executed. Hopeless confusion would result from such a construction of the legislative enactments.”

As to such leases, the court is without power to inquire whether or not the rent provided for in the lease is unjust and unreasonable. 13

In an opinion filed in a case in the Municipal Court of the City of New York, the justice writing stated that the statutory defense of unreasonable rent was available to tenants where the tenancies are monthly or from month to month, even though the relationship existed or commenced prior to April 1, 1920. This was on the theory that the contract is renewed monthly; that the exaction of rent after April 1, 1920, is not based upon a contract made prior to that date, but that a new contract is made each month.14

13 1200 Madison Ave. Corp. v. Merrills, 189 N. Y. Supp. 110 (App. Term, 1st Dept.).

14 Seventy-Eighth St. & Broadway Co. v. Rosenbaum, 111 Misc. 577, 182 N. Y. Supp. 505, 515, Spiegelberg, J.

At the same time there can be no doubt but that the September, 1920, laws 15 apply to leases made after April 1, 1920, because Chapter 944 of the Laws of 1920 not merely amends the earlier law which permitted the defense to be raised, 16 but re-enacts it in its amended form. 17

DEFENSE AVAILABLE TO NEW TENANT

It is definitely established that a new tenant is not barred from claiming that rent specified in a lease is unreasonable. 18

As stated by Mr. Justice Lehman: 19—

“The fact that a new tenant entered into a written lease for premises not previously occupied by him, and pays the first month's rent, may be evidence to be considered by the court or jury upon the question whether the agreement is actually oppressive, but it does not as a matter of law bar such tenant from raising the defense that the rental is unreasonable and the agreement oppressive. ... The Legislature has not expressly limited the statute to cases where the premises are occupied by a tenant who was in possession before the statute went into effect, and I can see no ground for holding that such a limitation was implied. . .

“The conditions which enable a landlord to exact unreasonable rents from tenants in possession on April 1st enable him to exact similar rents from tenants who may seek accommodations in the landlord's premises thereafter, and the same evils result from oppressive rents so exacted."

15 Among others, Chaps. 944 and 945, Laws of 1920. 16 Chap. 136, Laws 1920.

17 Edgar A. Levy Leasing Co., Inc., v. Siegel, 194 App. Div. 482, 186 N. Y. Supp. 5, affd. 230 N. Y. 634; McDowell Const. Co. v. Amarandos, N. Y. L. J., March 29, 1921, page 2196 (City Court of N. Y., Meyer, J.).

18 Klamer Realty Corp. v. Brill, 189 N. Y. Supp. 92, 93 (App. Term, 1st Dept.); Stewart v. Schattman, 187 N. Y. Sup 445 (App. Term, 1st Dept.).

19 In Stewart v. Schattman, supra.

NATURE OF ACTION FOR USE AND OCCUPATION

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There is, of course, a marked distinction between an action to recover rent accruing under an agreement for premises” and one to recover for use and occupation. In the latter case plaintiff's only recovery in any event can be "reasonable compensation for the use and occupation.” 20

Section 220 of the Real Property Law is as follows:

“Action for use and occupation.—The landlord may recover a reasonable compensation for the use and occupation of real property, by any person, under an agreement, not made by deed; and a parol lease or other agreement may be used as evidence of the amount to which he is entitled.”

Under this provision it has been held that the action to recover for use and occupation of real property cannot be maintained without proof of an agreement, express or implied, to pay rent. 21

In other words, the conventional relation of landlord and tenant must have existed between the parties. 22

The possession and beneficial enjoyment of real property, with the consent of the owner, is ordinarily sufficient to sustain the action upon an implied agreement for use and occupation.23

Where the tenant entered under a lease which for any reason was void and occupied the premises, he could,

2 Shuck v. McCarthy, 189 N. Y. Supp. 195 (App. Term, 1st Dept.), citing 1 R. S. p. 748, § 26; Real Property Law (Consol. Laws, c. 50), $ 220; Preston v. Hawley, 101 N. Y. 586; id., 139 N. Y. 296; Collyer v. Collyer, 113 N. Y. 442; Lamb v. Lamb, 146 N. Y. 317; Hinton v. Bogart, 166 App. Div. 155, 151 N. Y. Supp. 796.

21 Lamb v. Lamb, 146 N. Y. 317; Smith v. Stewart, 6 Johns. 46.

22 Preston v. Hawley, 139 N. Y. 296; Collyer v. Collyer, 113 N. Y. 442; Coit v. Palmer, 4 Abb. Pr. (N. S.) 140, 144, affd. 51 N. Y. 647.

nevertheless, be held liable for their use and occupation. 24

Under the emergency laws it has, however, been held that "the necessity of establishing the conventional relationship of landlord and tenant in order to maintain an action for the fair rental value for use and occupation no longer obtains, as that requirement was based on an election of remedies, which election cannot be required, as no possibility of election exists.” 25

And, further, says the same court:

“This principle applies even though the landlord attempted by judicial proceeding to oust the occupant by the institution of summary proceedings or in an action of ejectment, for these actions, by virtue of these emergency laws, are mere brutum fulmen." (Jones v. Sickle, N. Y. L. J., June 14, 1921.)

The election above referred to is the right which the landlord had prior to the emergency laws to recover possession of his property from tenants holding over without leases or refusing to pay the rent reserved in leases which they have made.

The learned court further says:

"Juridical interpretation of the Housing Laws, so called, has irrefutably established that the rights of a landlord or lessor theretofore existing have been curtailed by these statutes to the single remedy or expedient of demanding and receiving the fair rental value of the premises occupied regardless of the landlord's or lessor's consent to the occupation.26

34 Thomas v. Nelson, 69 N. Y. 118; Van Arsdale v. Buck, 82 App. Div. 383, 81 N. Y. Supp. 1017.

25 Durham Realty Corp. v. Ansbacher, (City Ct. of N. Y., Schmuck, J.), N. Y. L. J., July 16, 1921, page 1279, citing Paterno Realty Co. v. Hattenbach, 115 Misc. 400, 188 N. Y. Supp. 444.

* Citing People ex rel. Durham Realty Co. v. La Fetra, 230 N. Y. 429.

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Where the action is one to recover for the reasonable rental value for use and occupation of premises and not an action to recover "rent accruing under an agreement for premises,” there is no need for a defendant to plead that the exact sum claimed is unreasonable. In other words, it is unnecessary for a defendant or tenant in such case to plead the special statutory defense of unreasonableness. 27

It would seem, however, that unless the defendant pleads the special statutory defense, he is not entitled to the statutory bill of particulars from the landlord, for the landlord is only required to file this bill of particulars “where the answer contains the defense mentioned in section one," which is the special statutory defense. 28

ONE OR TWO DEFENSES IN THE STATUTE?

In the course of an opinion by one of the justices of the Municipal Court, it is stated that the law 29 provides for two defenses:-1, that such rent is unjust and unreasonable, and 2, that the agreement under which the same is sought to be recovered is oppressive. 30

The opinion thus expressed was not the point to be decided in the case and was based upon the repetition of the word “that” in the statute. While perhaps no fault is to be found with the point actually decided in the case, that a bill of particulars is required to be filed in an action brought to recover the reasonable value of the use and occupation of property, some doubt may be said to exist as to the correctness of the opinion that the statute creates two

27 Shuck v. McCarthy, supra.
28 g 2 of Chap. 434, Laws of 1921.
29 Chap. 944, Laws of 1920, as amended by Chap. 434, Laws of 1921.

30 Schaefer v. Ropes, 113 Misc, 654, 186 N, Y, Supp. 511 (Mun. Ct., C, of N. Y., Spiegelberg, J.).

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