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the burden of evidence. The same result may be effected by any substitute for evidence, such as judicial admissions, stipulations, rules of substantive law, the rule res ipsa loquitur, and statutory regulations prescribing what shall constitute prima facie evidence of specified facts. On the position of the burden of proof, properly so called, the existence of any particular inference of fact can have no effect, even should it constitute a prima facie case, or should further proof be excused by a rule of law.”

Bearing this statement of the law in mind, let us look into the practical effect of the provision we are considering. 14 It does not change or shift the burden of proof as to the defense of unreasonableness. That burden remains with the tenant or defendant, as in the case of every affirmative defense. It merely raises a presumption of unreasonableness in the tenant's favor, where the increase of rent referred to in the statute is made to appear at the trial.

This increase of rent may be made to appear by admission of the landlord, either expressly made at the trial, or contained in the pleadings or in the statutory bill of particulars. Once this increase over the rent of a year before is made to appear, the tenant has made out a prima facie case on his defense. If not so established, the tenant is obliged to prove the facts as to the increase to make his prima facie case. 15

If there is no evidence of any increase in rent over what it was the year before, there would be no presumption of unreasonableness, and without this presumption, the tenant would in the first instance and throughout the trial have the burden of bringing forward the evidence and of establishing the defense. 16

14 Chapter 434, Laws of 1921, $ 3.

16 Herman v. Krett, No. 241, App. Term, 2nd Dept., May 16, 1921, not reported.

16 Herman v. Krett, supra.

The proof of the increase of rent, if such increase be a fact, is easily established. Usually it may be established by the testimony of the tenant himself; if not, from the testimony of the landlord or his agent.

Once the tenant has made out his case, by virtue of the presumption, he may rest his case and the landlord has the

, burden of bringing forward evidence of the reasonableness of the rent claimed. If the landlord introduces no evidence to overcome the presumption, the tenant must succeed. 17

It has been held that where a landlord

“has overcome the presumption by evidence showing even a small

а or fair return upon his investment, and no evidence is offered by the tenant to contradict the case presented by the landlord, the latter is not entitled to the direction of a verdict in his favor, nor to have the verdict of the jury set aside as against the evidence and the weight of evidence." 18

The Appellate Term, however, held in another case, where the tenant rested upon the statutory presumption, and the undisputed testimony of the landlord rebutted this presumption by a showing of facts which disclosed an apparent deficit in the operation of the property, that the tenant had failed in his defense. 19

And in a case where a landlord sought to recover possession of premises from a tenant who held over, the landlord claiming possession of property, which he owned, for his own use, the Appellate Term held, 20 on the authority

17 Sachs v. Fowler, No. 252, App. Term, 2nd Dept., May 16, 1921.

18 Marchbanks v. Moore, 113 Misc. 647, 185 N. Y. Supp. 226 (N. Y. City Mun. Ct., Marks, J.).

19 Shanik v. Eckhardt, 112 Misc. 86, 183 N. Y. Supp. 155 (App. Term, 2nd Dept.)

20 Burns v. Knight, 187 N. Y. Supp. 504, 506.

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of the case of Hull v. Littauer, 21 that "where the evidence of a party to the action is not contradicted by direct evidence nor by any legitimate inferences from the evidence, and it is not opposed to the probabilities, nor, in its nature, surprising, or suspicious, there is no reason for denying to it conclusiveness.” “A jury,” said the court, “has no more right to act arbitrarily and unreasonably than the court has.”

The burden of proof does not shift, so far as the defense is concerned, for that remains with the defendant. said by Chief Justice Church, in the case of Heinemann v. Heard: 22

As was

“During the progress of a trial it often happens that a party gives evidence tending to establish his allegation, sufficient it may be to establish it prima facie, and it is sometimes said that the burden of proof is then shifted. All that is meant by this is, that there is a necessity of evidence to answer the prima facie case, or it will prevail, but the hurden of maintaining the affirmative of the issue involved in the action is upon the party alleging the fact which constitutes the issue, and this burden remains throughout the trial." 23

To sum up, in the language of the Court of Appeals of the State of New York,

"The presumption growing out of a prima facie case, however, remains only so long as there is no substantial evidence to the contrary. When that is offered the presumption disappears, and unless met by further proof there is nothing to justify a finding based solely upon it.” 24

a1 162 N. Y. 569.
22 62 N. Y. 448, 455.

23 This statement of the law has been approved in the following cases: Heilman v. Lazarus, 90 N. Y. 672, 673; Blunt v. Barrett, 124 N. Y. 117, 119; Stewart v. Stone, 127 N. Y. 500, 506; Spencer v. C. M. L. Ins. Co., 142 N. Y. 505, 510.

4 Potts v. Pardee, 220 N. Y. 431, 433.

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The courts have frequently, in connection with opinions filed in cases decided under this provision of the emergency law, given expression to statements such as,—"the landlord has the burden of showing that the increased rent which he is demanding is reasonable," and others of similar pur

port.25

These expressions must not be taken too literally. We believe that all that was intended by these expressions was to indicate that the duty of going forward with the evidence to overcome the presumption created by the statute was upon the landlord.

INCREASE REFERRED TO IN STATUTE REFERS TO PREMISES,

NOT TO PARTICULAR TENANT

The increase referred to in the statute is the increase in the rent of the premises, irrespective of the personality of the tenant with whom the agreement was made. If the rent of the premises has been increased as the statute provides, it is immaterial whether or not the tenant in possession was the person whose rent was increased. There is no limitation in the statute that the tenant must have been in possession of the premises before the statute went into effect. A new tenant may avail himself of the defense as well as an old tenant. 26

25 See Klamer Realty Corp. v. Brill, 189 N. Y. Supp. 92, 93; Maitland v. Kerrigan, 187 N. Y. Supp. 495. (Cases decided by App. Term, 1st Dept.)

26 Stewart v. Schattman, 187 N. Y. Supp. 445; Schaefer v. Ropes, 113 Misc. 654, 186 N. Y. Supp. 511, 513; Kramer v. Borgenicht, 188 N. Y. Supp. 477.

CHAPTER XVI

Reasonable Rent.1

NO TAKING OF PROPERTY FOR A PUBLIC USE BY THE "HOUSING

LAWS"

2

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The Court of Appeals of New York in upholding these emergency laws, has said ? that there was no taking of the property of the landlord for any public use without compensation, as the landlords contended, but that what was taken "was the right to use one's property oppressively," and that it was “the destruction of that right that is contemplated ” by the statute under consideration, and not any transfer to the public use.

The court in the course of the opinion, rendered through Justice Pound, by way of argument, asks this question: "Why then would the state have no power reasonably to regulate for a time the terms upon which a landlord under such conditions might put his tenants out when they promptly pay a reasonable compensation for the use of the property?

Apparently, thus, these laws have been upheld because they assure to the landlord "reasonable compensation for the use of the property.'

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ASSURANCE OF REASONABLE COMPENSATION TO LANDLORD This “reasonable compensation " is assured to the land184, Chap. 944, Laws of 1920, as amended by Chap. 434, Laws of 1921.

People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y. 429, 444. : Id., page 449.

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