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NECESSITY OF BILL IN ACTIONS FOR USE AND OCCUPATION

It has been held that the term “rent” as employed in this statute does not mean exclusively rent fixed by express agreement, but that it includes the compensation to be paid for the use and occupation of premises by a tenant, whether he holds under a written lease or at will or at sufferance, and whether the amount to be paid has been defined by the agreement of the parties, or has been left indefinite. 19

Upon the assumption that in order to sustain an action to recover the reasonable value of the use and occupation of property, the conventional relationship of landlord and tenant must exist and that therefore there must be an agreement, either express or implied, on the part of the tenant, to pay rent, 20 it has been decided that a bill of particulars as required by the statute must be filed even though the action was one to recover the reasonable rental value of property, as that, in the purview of the statute, was “an action for rent accruing under an agreement.” 21

NECESSITY IN ACTIONS FOR TRESPASS

And though the landlord changes the form of the action to one to recover damages for trespass, instead of an action

19 Schaefer v. Ropes, 113 Misc. 654, 186 N. Y. Supp. 511, citing 24 Cyc. 1137 and 3 Bouvier's Law Dict. 2880. To the same effect also see 1217, 1219, 1221 Madison Ave. Corp. v. Hyman, Callahan, J., N. Y. J. L., May 10, 1921. It may be noted, however, that other sections of the same statute make reference to both an action for "rent" and "rental value," thus apparently differentiating between the two. (See sections 5 and 6.)

20 Preston v. Hawley, 139 N. Y. 296; Lamb v. Lamb, 146 N. Y. 317; Castle 0. Armstead, 168 App. Div. 466, affd. 219 N. Y. 615.

21 Schaefer v. Ropes, 113 Misc. 654, 186 N. Y. Supp. 511. See also Guide Realty Co. v. Driscoll, 189 N. Y. Supp. 159 (App. Term, 1st Dept.); and 1217 1219, 1221 Madison Ave. Corp. v. Hyman, Callahan, J., N. Y. L. J., May 10,

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for rent, he cannot deprive the tenant of the right to a bill of particulars and of other special protection given him by these laws. 22

The importance in which the bill of particulars provided by this statute is regarded by the courts may be judged from the following extract from the opinion of Judge McCook:

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"To hold, as plaintiff now asks us to do, that a landlord may bring an action in trespass instead of for rent, and fail before trial to provide a bill of particulars, would be to nullify the legislation in question, flood the courts with such actions, and deprive tenants of the safeguards and protection supplied by the Legislature and now in effect."

In the case of 1217, 1219, 1221 Madison Ave. Corp. v. Hyman,24 the landlord drafted his complaint on the theory of suing for damages for trespass, and claimed that he therefore was not required to file the statutory bill of particulars. The tenant held over in the property in reliance upon the protection of the housing laws. The court held that a tenant holding over under these laws and willing to pay a reasonable rent is not a wrongdoer, and that an action to recover damages against him as a trespasser must fail; but that the suit brought might be sustained on the theory that it was an action to recover damages for the use and occupation of the premises. In such a suit, the court also declared, the statutory bill of particulars is required to be filed.

22 Michael E. Paterno Realty Co. v. Hattenbach, 115 Misc. 400, 188 N. Y. Supp. 444 (App. Term, 1st Dept.).

23 Id., 188 N. Y. Supp., at page 446.
24 N. Y. L. J., May 10, 1921, Callahan, J. (City Court of N Y.).

STATUTORY REQUIREMENTS OF BILL

The bill of particulars thus required by law must set forth, according to the statutory requirements, the following details :

1. The gross income derived from the building;

2. The number of apartments in the building and the number of rooms in each apartment, and the number of stores in such building;

3. The rent received for each such apartment or store for a period of one year last past;

4. The consideration paid by the landlord for the building, if he be the owner, or if he be a lessee, the rent agreed to be paid by him;

5. The assessed valuation of the property and the taxes for the current year;

6. The annual interest charge on any incumbrance paid by the landlord;

7. The operating expenses with reasonable detail, and

8. Such other facts as the landlord claims affect his net income from such property.

It has been held in a case in the Appellate Term of the Supreme Court for the First Department, 25 in an opinion written by Mr. Justice Guy, that it was error for the trial judge to have granted a motion to amend the bill of particulars to include therein "matters dealing with present market values, which can in no sense affect the net income to which the landlord was entitled.” The learned justice probably refers to a "present market value largely based upon the excessive rentals charged by owners of similar property, which led to the emergency the statute declared

26 A. C. & H. M. Hall Realty Company v. Moos, 115 Misc. 506, 188 N. Y. Supp. 858 (now on appeal to the Appellate Division).

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existed and which the statute was intended to remedy." The justice writing the opinion earlier refers to that particular kind of value in the language just quoted. We do not believe that the court intended by this decision to say that a proper market value "can in no sense affect the net income to which the landlord was entitled." There must be some basis on which reasonable rental shall be founded, and perhaps no better standard exists by which to measure a return than that of a proper market value of property.26

This decision makes clear, however, the point that only such matters as the statute states should find a place in the bill of particulars. Of course the specification we have designated "8," "such other facts as the landlord claims affect his net income from such property,” is rather broad and forms the basis for the insertion of any legitimate claim of the landlord which has any bearing on the net income of the property.

It has been held that an item of expenses of $10,000 for salaries of officials of the plaintiff corporation had no proper place in the bill of particulars. The court said “the cost of maintenance of the premises—not the cost of maintenance of a corporation that may or may not have a much larger and wider field of operation," was the proper consideration. 27

It has been held to be error for a trial justice to strike from a landlord's bill of particulars items of expenses apportioned for the year for raising a mortgage, attorney's

See opinion of Mr. Justice Lehman, for the same court in Schwartz v. Deutsch, 187 N. Y. Supp. 521, referred to more at length at page 214; Sperling v. Barton (App. Term, 1st Dept.), 188 N. Y. Supp. 857, and Hirsch v. Weiner (App. Term, 2nd Dept.), 190 N. Y. Supp. 111. We refrain from further discussion of this very important subject at this point because the subject is discussed at length under the topic of “reasonable rent," infra, Chapter XVI.

22 A. C. & H. M. Hall Realty Co. v. Moos, 115 Misc. 506, 188 N. Y. Supp, 858, 860 (now on appeal to the Appellate Division).

fees in dispossessing tenants, losses of rentals and depreciation, in the absence of explanation or of satisfactory reason appearing for such action.28

On the other hand, the fact that the statute requires a bill of particulars to show among other things the annual interest charge upon any incumbrance paid by the landlord and "such other facts as the landlord claims affect his net income from such property," has recently been held not to show that the Legislature intended mortgages to be considered in fixing rental value. The court said: “The reference to interest paid may be disregarded.” 29

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CONSEQUENCES OF FAILURE TO FILE BILL

There are two consequences which may result from a failure to file the required bill of particulars. These are specified in the statute and are, 1, "issue shall not be deemed joined,” and 2, "the court upon motion of the defendant” or tenant, as the case may be, "shall dismiss the complaint,” or its equivalent, if it be in a summary proceeding, the petition.

Presumably the defendant or tenant for whose benefit the bill of particulars is required to be filed may waive the filing of the statutory bill of particulars and if he proceed to a trial without making any point in respect to the filing, it would seem as though he must be deemed to have waived this requirement of the statute.30 It may well be contended that he should not be permitted to proceed with a trial, take the chance of a decision and then for the first time raise the question that the case was not at issue, because of the landlord's failure to file a proper bill. By proceeding to

28 Osmansky v. Auerbach, 189 N. Y. Supp. 7 (App. Term, Ist Dept.).
29 Hirsch v. Weiner (App. Term, 2nd Dept.), 190 N. Y. Supp. 111.
30 See Kaplan v. Bernstein, 115 Misc. 413, 188 N. Y. Supp. 350, 353.

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