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ing thereafter on both landlord and tenant as to any subsequent period. If either landlord or tenant desire to question this adjudication for a subsequent period, he is required to set forth in his pleadings and prove upon the trial facts "which shall have arisen since the period for which the prior adjudication has been made, affecting the rental value of the premises.
In other words, once a finding has been made, it is final on what is a reasonable rent, unless reversed or modified on appeal. It is not only final for the period involved in the particular action or proceeding where it has been adjudicated, but in all other proceedings for the same premises for future periods, unless some other facts are alleged and proved which should lead the court to modify the earlier judgment. These facts may not be any which could have been pleaded or proved on the first trial between the parties, but only such facts as have arisen after the period covered by the earlier judgment. This provision does away with the necessity of separate actions and a retrial of the defense of unreasonableness for each separate rental period. Of course, the adjudication is not conclusive except as to parties and those in priority with them. A stranger to the original action or proceeding would not be bound by the adjudication.
The Statutory Bill of Particulars 1
The statute requires in "an action for rent accruing under an agreement for premises in a city of the first class or in a city in a county adjoining a city of the first class," ? and in a summary proceeding to recover possession of property where the tenant "holds over ... after a default in the
“ payment of rent,” 3 that “where the answer contains the defense mentioned in section one" 4 the landlord must file a special statutory type of bill of particulars.
The requirement that the bill of particulars be filed by the plaintiff or landlord is dependent upon two acts on the part of the defendant or tenant, both of which must have been performed. They constitute, in a way, conditions precedent to the requirement of the filing of the bill of particulars by the plaintiff or landlord. They are, (1) that “the answer contains the defense mentioned in section one of this act,” 5 and, (2) that “the deposit provided for by section six has been made." 58
1 A suitable form will be found in Appendix G.
* To wit, New York City, Buffalo, Rochester, Yonkers, Mt. Vernon, New Rochelle and White Plains. See Chapter 944, Laws of 1920, as amended by Chapter 434, Laws of 1921, $ 1.
• Code of Civil Procedure, $ 2231, subds. 2 and 2-a; Civil Practice Act, $ 1410, subds. 2 and 2-a.
• Chapter 944, Laws of 1920, as amended by Chapter 434, Laws of 1921, 82. The defense referred to is discussed below.
6 Chap. 944 of Laws of 1920, as amended by Chap. 434 of Laws of 1921, $ 2. 68 See infra, Chapter XVIII.
The defense mentioned in "section one of this act” is that "such rent,”—that is, the "rent accruing under an agreement for premises,”—“is unjust and unreasonable and that the agreement under which the same is sought to be recovered is oppressive.” 6
“Section six,” above referred to, specifies the amount of deposit required and that the deposit must be made by the tenant at the time of answering the complaint or petition.?
PURPOSE OF BILL
Many questions arise in connection with the bill of particulars which is required to be filed. It is a special statutory kind of bill of particulars that is required. It differs considerably from the usual type where the particulars of a claim asserted in a complaint or answer are demanded in accordance with the general practice. It is a special kind of bill, which the statute specifically and in detail prescribes. The purpose of this statutory bill of particulars is to apprise the tenant of the details of income and expenses of the property and other necessary facts, in advance of the trial, so that he may be in a position properly to prepare for trial."
LANDLORD NOT REQUIRED TO PROVE BILL
There is no provision in the statute which requires the landlord to prove the facts which are required to be set forth in the bill of particulars and he is under no obligation to do
. See, as to the nature of this defense, Chapter XIII, supra, page 139.
7 For a consideration of the subject of the deposit required, see infra, page 248.
8 Chap. 944, Laws, 1920, 82, as amended by Chap. 434, Laws of 1921, and Chap. 945, Laws of 1920, as amended by Chap. 374, Laws of 1921.
9 See committee's explanation of Chapter 944 of the Laws of 1920, Appendix B, infra, page 307, and of Chapter 945, infra, page 327.
so.10 If the landlord is required by reason of the operation of the presumption in section 3 of the act 11 to go forward with the evidence and overcome the prima facie case of the tenant that the rent is unjust and unreasonable, he may do so in either one of two ways: first—by calling competent and duly qualified real estate experts, 12 or secondly-by calling witnesses to establish such facts as will show the net return of the property to be insufficient to yield him reasonable rent.18
The landlord is not limited by the items in the bill of particulars which the statute requires to be filed in respect to either fee or rental value. Experts called may testify freely and without restriction on both of these items. 14
NOT AN EXCLUSIVE REMEDY
The bill which the statute requires to be filed is not to be construed as constituting, so far as bills of particulars are concerned, an exclusive remedy, but rather, as giving an additional one, to enable litigants to secure certain specific details with promptness which otherwise perhaps, under the general practice prevailing as to bills of particulars, might not be required.15
NO DEMAND NECESSARY
No demand is necessary for this bill of particulars which the landlord is required by statute to file. It must be filed by the landlord within five days from the time the answer
10 Graeber v. Nichols, 190 N. Y. Supp. 198.
11 Chap. 944, Laws of 1920, amended by Chap. 434, Laws 1921. See infra, Chapter XV.
12 Hirsch v. Weiner (App. Term, 2nd Dept.), 190 N. Y. Supp. 111; Graeber v. Nichols, 190 N. Y. Supp. 198.
13 See discussion of this subject under "presumptions," Chapter XV, and under “reasonable rent," Chapter XVI.
14 Graeber v. Nichols, supra.
is filed or within such time as the court upon good cause shown may determine. It must be filed when the answer sets up the statutory defense of unjust and unreasonable rent and oppressive agreement, and the tenant makes the necessary deposit in court. 16
IMPOSSIBILITY OF SUPPLYING ALL PARTICULARS Where a new owner has acquired the property and is unable to furnish the particulars or all the particulars which the statute requires, or is unable by the use of reasonable diligence to obtain the necessary particulars, a statement to that effect surely will suffice. The statute does not, of course, seek to compel the impossible. 17
GENERAL STATEMENT OF LAW APPLICABLE TO BILLS OF
PARTICULARS The following general statement of the rule prevailing in respect to bills of particulars in general may appropriately be quoted here:
“While as a general rule a party cannot be required to furnish a bill of particulars of facts concerning which, for satisfactory reasons, he is unable to give more particulars than is stated. as of facts of which he swears he has no knowledge or means of knowledge, or in respect to any matter about which he is not and cannot be expected to be informed, and of which he is not shown to have knowledge, ... yet ordinarily he should ... file a bill containing a statement of such particulars as he is able to furnish, and if he is unable to furnish the particulars. . ., he should state his lack of knowledge or inability as a substitute for the information required.18
16 Laws of 1921, Chapter 434, 86.
17 Froehlich v. K. W. W. Holding Co., Inc., N. Y. L. J., July 27, 1921, page 1362. Cropsey, J. (Sp. T., Pt. III, Supreme Court, Kings Co.). See also 31 Cyc. 580, and cases there cited.
18 31 Cyc. 580, and cases cited.