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PAYMENTS DIRECT TO LANDLORD

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The tenant during the pendency of the action is obliged to make payments at the same rates on demand of the landlord, the plaintiff, "on the first day of each monthly rental period,” and these subsequent payments must be made directly to the landlord. In a case where the amount deposited is the amount reserved as rent in an agreement under which no payment has been made to the landlord, the tenant, on demand of the landlord, must pay to him “on the first day of each monthly rental period” the same proportion of the rent deposited at the time of answering as the court directed should be paid to the landlord out of the deposit, and must deposit the balance with the clerk of the court.

The fact that the landlord has not made a demand each month, but has permitted several months to elapse before making a demand, does not contribute a waiver of the landlord's right to require the tenant to make the payments required by the statute. 15a

When a payment is made to a landlord, he is obliged to tender a receipt; otherwise, the payment need not be made. The form of this receipt is quite inmaterial. No matter what it says, it can have no effect on the litigation. In the words of the statute, it “shall be without prejudice to the rights of either party to the action."

If these payments to the landlord or plaintiff in the action are not made during the pendency of the action, the court, on motion, may strike out the denial or defense raising the issue of reasonableness from the tenant's

answer.

150 Miller v. O'Donnell (Mun. Ct., C. of N. Y., 9th Dist., Sept. 30, 1921, Lauer, J.), not yet reported.

HOW DEPOSIT WITH CLERK APPLIED

The section 16 further provides that all moneys in the hands of the clerk “ shall be applied to the satisfaction of the judgment rendered or otherwise disposed of as justice requires.”

The judgment must contain a provision that if it is not satisfied from the deposit or otherwise within five days after entry and service of a copy on the defendant or tenant, the plaintiff or landlord shall be entitled to the premises and a direction that a warrant shall issue.

The clerk has no right to delay a landlord in his right to a warrant and has no power to extend the time of a tenant to pay. The tenant, if he desires to avoid the issuance of a warrant, must deposit the additional sum, if any, that he is required to pay to satisfy the judgment within the five days; otherwise the landlord becomes entitled to the warrant.

In a case in Kings County, upon the excuse that he required a military affidavit under the Soldiers' & Sailors' Civil Relief Act, the clerk of the Municipal Court refused a warrant to the landlord, although more then five days had elapsed for the tenant to pay the judgment. The tenant paid the clerk of the court fourteen days after judgment. The justice, in granting a writ of mandamus directing the clerk to issue the warrant, said:

“The judgment of the court left nothing for the clerk to do but to receive the rent and costs within five days or to issue the warrant on the demand of the plaintiff. The action of the clerk had the effect of removing all limitations placed by the law on tenants. In face of the generally conceded fact that the framers of the new

16 8 6 of Chapter 434, Laws of 1921.

rent laws left nothing whatsoever to the discretion of the courts in so far as the rights of the tenants are concerned, the requirement that the tenant abide by the judgment in five days must necessarily be enforced. To hold that the clerk of the court can extend the time to fourteen days, and, of course, if to fourteen days then to an indefinite time, is the same as removing all limitations from these laws and legislating anew.

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It has been decided that the Supreme Court would not grant a writ of mandamus directing a clerk of the Municipal Court to pay over money to a landlord, but that the landlord's remedy is by motion in the Municipal Court, and appeal if relief is there denied him. 18

COSTS

Prior to the amendment of the statute in 1921,19 there was more or less divergence of opinion in respect to whether a plaintiff who recovered a judgment for more than $50 was entitled to costs, even though he did not succeed in a recovery of the full amount claimed. This point has now been definitely settled by the statute, 21 which states that “the plaintiff shall be entitled to costs only in the event he recover the full amount demanded in the complaint."

17 People ex rel. Rigoulet v. Byrne, Supreme Ct., Kings Co., Van Siclen J., 189 N. Y. Supp. 916.

18 People ex rel. Ellstein Realty Co. v. Fagan, Aspinwall, J., N. Y. L. J., Feb. 15, 1921, page 1692.

19 Chap. 434. 20 Id., $6.

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TITLE IV

REMEDIAL-MISCELLANEOUS

CHAPTER XIX

Repairs and service The requirement of brevity in a caption necessarily makes the heading of the present title vague. There will be treated under this title such subjects as repairs, heat and water supply, service, and miscellaneous other matters important in a survey of the present-day relation of landlord and tenant, but not properly belonging under the discussion of either the “possessory” or “regulatory” aspects of the emergency laws.

REPAIRS

Contrary to what is perhaps the general impression, there is, in the absence of a special agreement, based upon a valid consideration,' no obligation upon a landlord to make repairs in leased premises. The law imposes upon the tenant the duty to keep such premises in repair.? Where the leased premises are parts of a building, such as apartments, the landlord is bound to keep in repairs those parts of the structure which remain under his control.: In the language of the Court of Appeals,

1 Curry v. Coyle (App. Term, Ist Dept.), 189 N. Y. Supp. 65.

? Peats Co. v. Bradley, 166 App. Div. 267; Curry v. Coyle, supra; McAdam on "Landlord & Tenant,” Vol. II, pages 1300, et seq.; Schick v. Fleischhauer, 26 App. Div. 210; Bronner v. Walter, 15 App. Div. 295; Spero v. Levy, 86 N. Y. Supp. 869.

• Hirsch v. Radt, 228 N. Y. 100, 104.

“Where the subject of the lease is part of a building, a duty is imposed upon the lessor to use reasonable care in keeping in suitable condition the hallways, roof and other parts of the building intended for the general use of all tenants and which are subject to the landlord's control.” 4

What has perhaps caused confusion upon this subject in the public mind are certain provisions of the Tenement House Law and the Sanitary Code of New York City which, unexplained, are possibly ambiguous. These provisions will be found grouped in Appendices E and F of this volume, together with a statement of the Tenement House Commissioner of New York City construing them.

One of these provisions & states:

“Every tenement house and all parts thereof shall be kept in good repair.” Another ? says:

7 “The owner of every tenement house or part thereof shall thoroughly cleanse all the rooms, passages, stairs, floors, windows, doors, walls, ceilings, privies, water-closets, cesspools, drains, halls, cellars, roofs and all other parts of the said tenement house, or part of the house of which he is the owner, to the satisfaction of the department of health, and shall keep the said parts of the said tenement house in a cleanly condition at all times."

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And the New York City Sanitary Code 8 makes the "owner, lessee, tenant and occupant ” of a building or part

See also McAdam on “Landlord and Tenant,” Vol. II, page 1303. 6 See infra, pages 359 and 367.

•N. Y. Tenement House Law, Laws of 1909, Chapter 99, § 102; see Appendix F.

7N. Y. Tenement House Law, Laws of 1909, Chapter 99, $ 104; see Appendix F.

& Section 51; see Appendix E.

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