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the landlord continues until the conclusion of the original term.374 The mere commencement of a foreclosure suit is insufficient to release a tenant from his liability for rent. 38

ACTION, WHERE TO BE BROUGHT Every action to recover rent or reasonable rental value must be brought in the county in which the premises are situated or, if in the municipal court of the City of New York, in the district in which the premises are situated.3

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MEANING OF WORD "RENT" IN STATUTE It has been held that the word “rent as used in this subsection (§ 4 of Chapter 434, Laws of 1921) is not intended in its strict legal sense of an agreed amount payable for the use of real property where the relation of landlord and tenant exists, but “ was intended and used in the broader and colloquial sense understood by laymen, that is, a reasonable return upon real property.” The court declared in the light of this interpretation of the word rent that “the statute gives an absolute right to bring a separate action for the rental value of the premises for use and occupation.” The court argued that the statute having taken away the previously existing right of a landlord to regard the tenant holding over as a holdover or trespasser, subsection 4 gives in lieu of the old rights this new right of action. It thereupon concluded:

“It is hardly to be supposed that when such an extraordinary remedy is given to tenants that equal protection should not be

37a McCready v. Lindenborn, 172 N. Y. 400; Halpern v. Manhattan Ave. Theatre Corp., 173 App. Div. 610, 615, aff'd, 220 N. Y. 655; Slater v. Von Chorus, 120 App. Div. 16.

38 Met. Life Ins. Co. v. Childs Co., 230 N. Y. 285. 39 Chap. 434, Laws of 1921, § 11.

given to landlords to receive the reasonable rental value of premises during the period in which the Legislature has made it impossible for them to oust tenants from possession.” 40

PLEADING AND PROOF OF REASONABLE RENT

The statute says nothing therein contained shall prevent the landlord from "pleading and proving ” a fair and reason

“ able rent. The question arises whether in the event the landlord sues upon and pleads an agreement to pay a definite sum as rent, he may nevertheless prove reasonable rental value at the trial. No decision upon the point is yet reported. If the statute contemplates both the “pleading and proving' of reasonable rental value by the landlord “in such action,” that is, in an "action for rent accruing under an agreement,” 41 it would seem proper to allow an amendment during the trial, if the landlord should elect to ask for a decision on the reasonable rent. The wording of the statute seems to afford the landlord the election of either claiming reasonable rent in the same action by "pleading and proving" it, or of "instituting a separate action for the recovery thereof." The landlord, of course, in the first instance would have the right to draft his complaint on two counts: one, "for rent accruing under an agreement” and, two, for “fair and reasonable rent." An amendment at the trial in a case where there was no pleading for "fair and reasonable rent” would seem to work no injustice to the tenant, for, if he has pleaded the statutory defense that the rent is unjust and unreasonable and the agreement oppressive, he is required to be prepared to support his defense and the issue thus created.

40 Weil v. Lesser (City Court of N. Y., Meyer, J.), 115 Misc, 241, 189 N. Y. Supp. 655.

41 Chap. 434, Laws of 1921, $ 1.

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The landlord, therefore, it would seem, in the event that his action is brought to recover rent accruing under an agreement express or implied may, nevertheless, at the trial demand the recovery of the "fair and reasonable rent” for the premises, where the defense of unreasonable and unjust rental and oppressive agreement as set forth in subsection one of the act 42 is interposed by the tenant. The landlord may in his action ask a recovery for the rent agreed upon by the tenant and if that be found unjust and unreasonable, may then ask in that action, if he chooses, a recovery of a "reasonable rent.'

If, however, the landlord chooses in such action to rely upon his pleading to recover on the agreement and not ask for a recovery on the basis of a reasonable rent, and the tenant then succeeds in establishing his defense that the rent is unjust, unreasonable and oppressive, the judgment or final order should be in the defendant's or tenant's favor. This judgment would not, however, preclude the landlord from bringing and maintaining a new action to recover a reasonable rent. The earlier judgment would merely be a decision that the rent under the agreement as claimed by the landlord was unreasonable and unjust. 429

If the tenant on the trial makes out a prima facie case under the statute so that the statutory presumption becomes operative and effective, the landlord should be asked by the court whether he desires the court or jury, as the case may be, to make the finding as to what is a reasonable rent, in the event the finding should be that the rent claimed under the agreement is unreasonable. Otherwise it may be claimed that the evidence offered by the landlord was offered merely to overcome the presumption and not to establish affirmatively a claim based on a reasonable rent. If the record fails to show that the landlord has made his election to have a finding of what is the reasonable rent, should the finding be against him on the rent sued for under the agreement, the judgment may not be res adjudicata on the question of reasonable rent.

12 Chap. 944, Laws of 1920, as amended by Chap. 434, Laws of 1921, $ 1. 42a See Paul v. Rothberg (App. Term, 1st Dept.), 188 N. Y. Supp. 126.

REASONABLE RENT IN SUMMARY PROCEEDINGS It should be noted, however, that in a summary dispossess proceeding based upon non-payment of rent, where the rent unpaid is rent under an agreement and the statutory defense is interposed that the rent is unreasonable and unjust and the agreement oppressive, the court has power given it by statute to adjudicate a reasonable rental. This power, in the case of a summary proceeding, is conferred by a special provision of law which we have heretofore considered. This provision is to the effect that if a defense of any kind is set up and established in a summary proceeding, the court "shall ... determine the amount of rent due ... or make such other proper disposition as shall determine the rights of the parties."

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DEFINITION OF REASONABLE RENT

What is a "reasonable rent”? and How may “reasonable rent” be ascertained? These are the important questions. The statutes are silent on the subject and throw no light

upon it.

Reasonable may be defined as "just" or "rational."44 The word is a generic one, and difficult of adequate definition. 45

43 Code of Civil Procedure, $ 2244, as amended by Chapter 132 of the Laws of 1920; Civil Practice Act, § 1425. See Chapter X, supra, page 113, where this subject is considered at length.

44 3 Bouvier's Law Dict. 218; Black's Law Dict. 994.
45 People v. Butts, 121 App. Div. 226, 105 N. Y. Supp. 677, 678.

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It has been defined as “just, proper, fair, equitable," 46 and again, as "fair.'' 47

It has been said, that the rents must be reasonable under these laws to both landlords and tenants, and, if they are not, the tenants must be preferred. 48

The statute, however, draws no such distinction and gives no such preference. The highest court of this State has said that a "reasonable rent" is the term used for a statutory charge for use and occupation, to be ascertained judicially through a method provided by the statutes."'49

STANDARD FOR DETERMINING REASONABLE RENT

51

Until the very recent decision of the Appellate Term of the Supreme Court for the Second Department 50 the courts had stated that it was impossible to fix any definite standard by which the reasonable rental value of premises may be determined, which would be applicable to all cases.

There have been many decisions in the courts, but until the Appellate Term decision above referred to no general principle for the ascertainment of reasonable rental value had been enunciated which could be applied in every case. We shall present the rule as it has been stated by the Appellate Term of the Supreme Court in the Second Department and call attention as well to the other decided cases which are pertinent in a consideration of this topic.

46 People v. Rosenberg, 59 Misc. 342, 112 N. Y. Supp. 316, 318.

47 Shapiro v. Goldstein, 113 Misc. 258, 185 N. Y. Supp. 234 (Mun. Ct., N. Y. City, Robitzek, J.).

48 Shapiro v. Goldstein, supra.

49 People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y. 429, 438, Pound, J.

50 Hirsch v. Weiner, 190 N. Y. Supp. 111 (decided Aug. 31, 1921).

51 Schwartz v. Deutsch, 187 N. Y. Supp. 521 (App. Term, Ist Dept., Lehman, J.); Marchbanks v. Moore, 113 Misc. 647, 185 N. Y. Supp. 226 (Mun. Ct., N. Y. City, Marks, J.).

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