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tenant in the building was $47. The judgment of the lower court was reversed. 111

A recent report by the Washington Heights Taxpayers' Association 1119 grades a return ranging from 10% in the case of the poorer grades of apartments to a maximum of 772% in the case of high grade multi-family houses as adequate. 1110

111 Carriger v. Mack, Appellate Term, 2nd Dept., No. 165, May 16, 1921, not reported.

1111 Prepared by Reginald Pelham Bolton and appearing in the New York Times of Sunday, June 5, 1921.

1116 The complete report follows: "Our purpose is the preparation of facts and figures relating to rentals and values of residential real estate, designed to be submitted to the Judges of our Municipal Courts for their use in deciding the value of properties by a uniform method, and proportioning thereon a fair rental which shall provide a reasonable return to the owner.

"Our committee has considered a number of suggestions of possible methods for ascertaining the basis of reasonable rentals, and has made inquiry into existing conditions in many buildings. From these we have drawn the conclusion that the two known elements in the operation of residential property are the assessed valuation and the average operating expenses proportioned to gross rentals.

"We propose that these elements be utilized to arrive at a minimum value for residential properties, upon which rentals should provide a rate of interest suited to the existing value of money. The operating expenses being added to this return, affords a basis of rentals which we believe represents fair consideration of the interests of tenant and owner.

“Our plan necessarily includes a classification of the types of residential property, as we find that the operating costs and the rate of interest upon money invested in such properties must always vary. We believe that the use of assessed valuations as a basis for determination of minimum value will have, if generally adopted, the effect of regulating assessed values, and of interesting in that matter both the tenant and the owner. We also believe that the adoption of the system we suggest will stabilize the value of real estate by establishing its minimum value. We propose, therefore, to divide residential properties into five groups, as shown upon the accompanying tabulation.

"We propose to regard the assessed value of such properties as being on the average 8242 per cent of its real value, and in order to reach the approximate commercial value, we propose to add 15 per cent thereto. Thus we establish a minimum value upon which a fair rate of rental may be based. We propose The evidence must in every case tend to disclose a basis on which the award of rental value can be made. Where the proof is of such a nature as not to afford a basis for making the award, it is so unsatisfactory that a judgment in the landlord's favor based thereon cannot be permitted to stand. 1110

that the rental shall provide upon the minimum value so ascertained, rates of interest which shall vary from 792 per cent in the case of the highest grade of elevator apartments, to 10 per cent in the case of the poorest grade, or coldwater tenements.

“We have carefully investigated and compared the relation of operating costs to gross rentals, and find that they have increased from the wellestablished proportions existing prior to the war, so that we now find that they vary from 37 per cent in the case of cold-water tenements to 62 per cent in the case of elevator apartments. These proportions being added to the net income, afford the rate of fair rentals which we propose. These rates range from 16.77 per cent of the minimum value in the case of cold-water tenements to 20.8 per cent in the case of elevator apartments.

We have carefully compared these proposals with the record of recent sales and offerings of such properties, and we find that they fairly represent current market conditions in the proportion which the commercial value of such properties bears to the rate of rentals. We therefore present a summary of the ratio of rents to minimum value, which forms a ready method of determining the rate of the rental. The figures are summarized in the accompanying tabulation."

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95

A SCALE OF MINIMUM VALUE AND FAIR RENTAL AND RETURN THEREON, ON RESIDENTIAL PROFERTY. ADVOCATE) BY WASHINGTON HEIGHTS TAXPAYERS' ASSOCIATION b d

g A8- Mini

Operat

h

i sessed mum Fair

ing Net In- Income Ratio Value Value Rental Rents Costs come

OT of Rents Class of Building Book % (b % % of a % % Interest to Book

and Service Value of a +15%) of d (dre) of 1 of % on a Value Cold water tenem .100 82.5

95 16.77 15.87

37.0 63.0 10.0 1 to 6.30 Hot water tenem...100 82.5

17.53 16.66 46.0

54.0 9.0 1 to 6.00 Flats, heat & h. w..100 82.5

95
19.10 18.18 53.8

46.2 8.5 1 to 5.50 New law, walk-up, heat & hot water. 100 82.5 95 20.00 19.00 57.9 42.1

8.0

1 to 5.25 Elevator apartments 100 82.5 95 20.8 19.73 62.0 38.0 7.5 1 to 5.06

SUMMARY
Ratio of Rents to Minimum Book Value (Assessed value Plus 15 Per Cent
Cold water tenements...

.1 to 6 New law, walk-up, heat and hot
Hot water tenements.
1 to 5.7 water...

.1 to 5 Flats, heat and hot water. 1 to 5.2 Elevator apartments

1 to 4.8 1110 Canter v. Friedberg (App. Term, 1st Dept.), 188 N. Y. Supp. 834.

RENT DUE AT END OF PERIOD, UNLESS OTHERWISE AGREED

UPON

Where the action is brought to recover the reasonable rental value of the use and occupation of premises, and not to recover rent under an agreement, express or implied, the rent is not due until the end of the period for which the rental value is sought to be recovered. 112 Rent is only due at the beginning of the period by express agreement of the parties.

113 Hayes v. Rosenblatt, 181 N. Y. Supp. 241.

CHAPTER XVII

The Judgment-Opening Default

REASON FOR CHANGE IN FORM

1

Before the enactment of the present laws a landlord could secure repossession of his property where a tenant failed to pay the rent. This right having been taken away from the landlord, it was thought only fair to provide in the emergency law that he should get back his property if the tenant after a reasonable time failed to pay the amount determined in a judicial proceeding to be just and reasonable.

The explanation of these changes made by the Legislative Committee shows clearly the reasons therefor.?

FORM OF JUDGMENT REQUIRED

The ordinary judgment for a sum of money only is not the proper one to be entered in an action for rent or rental value under the emergency law. A judgment entered should be complete in the first instance, for there can be only one judgment entered in an action.3

The judgment entered in a rent action under the emergency law should contain a provision for the issuance of a warrant in

a the event the tenant fails to pay the full amount adjudicated within five days after entry and service of the judgment.4

See § 5 of Chap. 944, Laws of 1920 as amended by Chap. 434, Laws of 1921. ? See Appendix B, pages 307 and 308.

3 See Lauer's Pr. Suppl., page 178, citing Royal Palace Realty Co. v. White, 96 Misc. 678, 161 N. Y. Supp. 97; Bloch v. Black & White Cab Co., 102 Misc. 677, 169 N. Y. Supp. 587.

* See 8 5 of Chap. 434, Laws of 1921.

If the case is tried by the court without a jury, a decision should be signed by the judge; if by the court with a jury, the clerk's record is sufficient without a decision.5

Where the action is one to recover rent in an amount which has been agreed upon, the clerk of the court, in case of default, should enter the judgment. The judgment which he is required to enter is, of course, one in the form prescribed by the statute. Where the action is to recover reasonable rental value, the amount is undetermined and the clerk cannot enter the judgment by default. In that event, proof of the cause of action must be made before the court.

REQUIREMENT AS TO SERVICE BEFORE DISPOSSESSION

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Before the tenant may be dispossessed, he must be served with a copy of the judgment. The service provided for by the statute is, in the first instance, personal service. The statute provides, however, that if personal service cannot be made, service may be made by leaving a copy of the judgment at the residence of the defendant with a person of proper age. The tenant has five days' time after the entry of the judgment and service of a copy in which to satisfy the judgment.

Where a deposit has been made and judgment is rendered for the plaintiff, the judgment must contain a provision that if it be not fully satisfied either from the deposit or otherwise, the plaintiff shall be entitled to a warrant of dispossession.

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5 Forms of decision and judgment will be found in Appendix G, pages 388 and 389.

5, Chap. 434, Laws of 1921. For further consideration of this subject, see discussion in next chapter, "The Deposit,” pages 254–255.

" See § 6 of Chap. 434, Laws of 1921,

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