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City, no similar legislation exists, except that an action for rent or rental value must, by the terms of the "reasonable rent” law where that is applicable, be brought in the county or municipal court district in which the property concerned is situated. 16 It has long been the general law of the State, however, that the venue of an action will be changed if the convenience of witnesses will thereby be served, and the exercise of this principle will doubtlessly suffice to work justice elsewhere than in New York City.17
It may be noted that in the Municipal Court of New York City a special provision of law permits the judge upon motion of either party at the time of joining issue, or the clerk on consent, to transfer a case for trial to an adjoining district. 18
PAROL MODIFICATIONS OF LEASES
Frequently the courts are asked to hold that the provisions of a lease have been modified by parol, and that the lease as
a modified only should be enforced. The law relating to such modifications seems clear. If the modification is executory, that is, the parties have not yet acted thereunder, and no consideration is shown therefor, it is unenforceable. But if made for good consideration and partly executed (as by the payment of the consideration), the parol modification may be enforced. 19
In one such case it was claimed that there had been a rescission of the written lease and the creation of a new tenancy by parol. The court held that to sustain such a claim,
16 Chapter 434, Laws of 1921, $11. See infra, Appendix B.
17 Northway Holding Co. v. Parker (Supreme Court, Tioga County), N. Y. Law Journal, Jan. 4, 1921.
18 Civil Practice Act, 8 1427.
the facts must show clearly both a surrender of the original term and an acceptance of such surrender. 20
DISPOSSESSION, ETC., UNDER PROHIBITION LAWS Of late, many questions have arisen as to how real property is affected by certain provisions of the Prohibition Laws, and much confusion upon the subject exists. Without attempting to resolve the many perplexing problems presented, brief reference may perhaps appropriately be made here to several recent decisions.
The so-called Mullan-Gage Act 21 purports to prohibit the manufacture, sale and possession of intoxicating liquors by provisions in many respects similar to the Federal Prohibition Law, commonly known as the Volstead Act.
A recent case in this State holds that where premises were leased to be used solely for “saloon purposes,” the subsequent passage of the Mullan-Gage Act sufficed to exonerate the tenant from further liability under his lease, he having discontinued business and removed from the premises. 22
A directly opposite conclusion was reached, however, in a case in New Jersey where premises had been leased for use as a “café.” 23
In an interesting recent proceeding by a landlord to recover possession of leased property upon the ground that it was being used in pursuit of an illegal act, namely, the
20 Pearlstein Realty Co., Inc., v. Collins (App. Term, 1st Dept.), 187 N. Y. Supp. 191.
21 Laws of 1921, Chapter 155, adding to the N. Y. Penal Law 1210 to $ 1218, inclusive.
22 Doherty v. Monroe-Eckstein Brewing Co. (App. Term, 1st Dept.), 187 N. Y. 633, and cases cited.
23 Proprietors' Realty Co. v. Wohltmann, 112 Atl. R. 409. See, as to the foregoing decisions, editorials in N. Y. Law Journal of April 16, May 2, June 24 and June 30, 1921.
possession of intoxicating liquors in violation of the MullanGate Act,24 Mr. Justice Prince has held that the landlord cannot succeed and recover his property, despite his allegations and statutory proof of unlawful use. Emphasis is placed in the opinion upon the fact that the landlord relied upon the offense of mere possession and the statutory presumption that such mere possession is criminal, unless satisfactorily proved by the possessor to be lawful. “It is,” Justice Prince holds, “contrary to the protection guaranteed by our Constitution that the citizens of our State shall be required to prove their innocence of crime." He points out that the Eighteenth Amendment of the Constitution of the United States does not prohibit possession or use of intoxicating liquor, but only its manufacture, sale, transportation, importation or exportation. "Crime cannot thus," he states, “be made to rest upon mere passivity.” 25
34 Spinelli v. Morrelli (Mun. Ct., City of N. Y., 8th Dist., April 25, 1921), not yet reported.
25 Citing Wynehamer v. The People, 13 N. Y. 378; Cumings v. Missouri, 4 Wallace, 227, 328; Davis v. United States, 160 U. S. 469.
In this Appendix will be found all the laws which are classified in Chapter VI of this work as “permanent laws.” Accompanying the laws, we have added the Joint Legislative Committee's explanations.
Where there has been no judicial interpretation of language, the meaning of which may not be entirely clear, the committee's explanation may be found helpful. It may be properly resorted to as an aid to the interpretation of the legislative intent.
The portions printed in italics are new matter in the law. Portions enclosed in brackets have been eliminated by the amendments.
The following laws will be found in this Appendix: Laws of 1920—Chapters 130,3 1314 amended by 951,5 132, 133,7
134, 135,9 repealed by 947,10 138,11 209,12 210,13 943,14 946,1 94916 as amended by Chapter 44417 of 1921, 950,18 952,1
Laws of 1921-Chapters 165,21 298,22 444.23
· For additional explanation, reference is made to Chapter VI of this work. The “temporary” laws will be found in full in Appendix B.
2 Schaefer v. Ropes, 113 Misc. 654, 186 N. Y. Supp. 511, 514; Trop v. Van Voorhis, 113 Misc. 697, 186 N. Y. Supp. 517. The following cases are cited as authority for the proposition: Caminetti v. United States, 242 U. S. 470, 490; Famborille v. Atlantic, Gulf & Pacific Co., 155 App. Div. 833, 840, 140 N. Y. Supp. 529, affirmed 213 N. Y. 666; United States v. St. Paul &c. Ry., 247 U.S. 310, 318.
3 See page 36. •Page 38. 5 Pages 38, 45. •Page 39. ? Page 40. 8 Page 41. • Page 41. 10 Page 52. 11 Page 41. 12 Page 42.
14 Page 43. Page 43.
16 Page 44. 17 Page 44. 18 Page 44. 19 Page 45. 29 Page 45, 31 Page 46.22 Page 46. Page 44, footnote,
CHAPTER 130, LAWS OF 1920 24
Section 1. Section two hundred and thirty-two of chapter fiftytwo of the laws of nineteen hundred and nine, entitled "An act relating to real property, constituting chapter fifty of the consolidated laws," as last amended by chapter three hundred and three of the laws of nineteen hundred and eighteen, is hereby amended to read as follows:
$ 232. Duration of certain agreements in New York. An agreement for the occupation of real estate in the city of New York, which shall not particularly specify the duration of the occupation, shall be deemed to continue until the first day of October next after the possession commences under the agreement.
"By Section 232 of the real property law as it now stands an agreement for the occupation of real property in New York creates a tenancy from month to month unless the duration of the occupancy is specified in writing and signed by both parties or their agents. Great hardship has arisen through the operation of this law. Tenants have gone into possession of premises without any written agreement under the promise that they could stay for a definite time or so long as they paid their rent. Unscrupulous landlords have then repudiated these assurances in order to make frequent increases in rent. In some cases the landlord making the promise would live up to his agreement so long as he owned the property, but when sold to another person, the new owner would refuse to be bound by any such agreement, and compel the tenants to move or pay higher rents. Thus the practice of the so-called 'Leaster' has been mady easy. Many people attribute the present intolerable condition amongst the poorer class of tenants to the operation of this law.
24 In effect April 1, 1920.