« EelmineJätka »
Appeals of this state in the case of People ex rel. Durham Realty. Corporation v. La Fetra : 36
“Whether or not a public emergency existed was a question of fact, debated and debatable, which addressed itself primarily to the Legislature. That it existed, promised not to be presently self-curative, and called for action, appeared from public documents and from common knowledge and observation. If the law-making power on such evidence has determined the existence of the emergency and has, in the main, dealt with it in a manner permitted by the constitutional limitations upon legislative power the legislation should be upheld.”
36 230 N. Y. 429, 440.
Summary Proceedings, Actions for Rent and for Rental
Value Explained-Effect of Tax-exemption Laws on Building
It seems advisable to begin this chapter with a few words of explanation, which may tend to a better comprehension of the "housing laws."
We have two forms of procedure under the prevailing practice in our courts. They are( 1) actions and (2) proceedings.
The particular actions in which we are here interested are actions to recover rent and actions to recover rental value.
The particular proceedings in which we are here interested are "summary proceedings" or, as they are popularly known, “dispossess proceedings." To give them their full name, they are “summary proceedings to recover possession of real es
An action is commenced by the service of a summons and results in a judgment, which is enforced by an execution against the property of the debtor. The judgment in an action for rent or rental value may be additionally enforced, if it remains unpaid, by the recovery of the property, if the tenant continues in possession.
A summary proceeding is commenced by the service of a precept, which corresponds to the summons in an action. The precept is issued by the court after the filing or presenta
i Laws of 1921, Chap. 434, sec. 5.
tion of a sworn written petition. The proceeding results in a final order, which corresponds to the judgment in an action. The final order is enforced by a warrant of dispossession, if in favor of the landlord and against the tenant.
A A tenant may be removed in a “summary proceeding" to recover possession of real property on various grounds.? We are concerned with only two of these grounds in our present consideration of the housing laws: (1) When the tenant holds over after the expiration of his term, and (2) when the tenant holds over after a default in the payment of rent.4
In the case of a “summary proceeding" to recover property because of the non-payment of rent, where a final order in the landlord's favor is granted, the tenant may pay the rent at any time before the warrant is issued. Upon payment of the rent and such costs as may be awarded, the issuing of the warrant is stayed.5
There is a distinction between an action to recover rent and one to recover rental value. Rent may be said to be the return or compensation to which a landlord is entitled from his tenant by virtue of an agreement, called the lease. In a broader sense, it is any return which a landlord secures from a tenant, whether by agreement or not. A lease may be either
These grounds are set forth in sections 2231, 2232 and 2233 of the Code of Civil Procedure. After October 1, 1921, the provisions of the Civil Practice Act become operative and these grounds will be found in sections 1410, 1411 and 1412 of that Act.
3 See subdivision 1 of either section 2231 of the Code of Civil Procedure or of section 1410 of the Civil Practice Act, limited by subdivision la of these statutes under the housing laws.
See subdivision 2 of either of the sections mentioned in the preceding note, limited by subdivision 2a of these stautes under the housing laws.
5 See Code of Civil Procedure, $ 2254, subdiv. 1, Civil Practice Act, $ 1435, subdiv. 1.
written or oral. When we refer to an action to recover rent, we usually mean an action which is predicated upon an express agreement. On the other hand, when we refer to an action to recover rental value, we have in mind an action which is not predicated upon an express agreement, but one in which it is sought to recover the reasonable value, that is, the reasonable rental value for the use and occupation of premises.
Prior to the year 1820, the only remedy a landlord had to recover his property was an action of ejectment. That action was an expensive, highly techinical and dilatory one. The loser had the right to a new trial within three years, almost as a matter of course, and in many instances he could obtain a still further retrial of the case within two years after the second trial.8
The statute of 1820, which established the so-called summary proceeding,' was designed to remedy the evils arising by reason of the nature of the action of ejectment, by providing the landlord with a simple, expeditious and inexpensive means of regaining possession of his property in cases where the tenant refused upon demand to pay rent, or where he wrongfully held over without permission after the expiration of his term. 16
As nearly all summary proceedings in the City of New York are instituted in the Municipal Court of that City, it may be well to note that that court has jurisdiction of summary proceedings to recover possession of real property without limitation as to the amount involved. Such proceedings,
• Laws of 1820, Chap. 194.
Section 1525, C. C. P., repealed by Laws of 1911, Chap. 509.
however, must be commenced within the boundary of the court district wherein the whole or part of the property is situated. 11
In actions for rent or rental value the jurisdiction of the court is limited to $1,000.12
There is, however, no limitation, either constitutional or statutory, in respect to a counterclaim which may be interposed in a summary proceeding. 13
In a general way, it may be said that these “Housing Laws," enacted under the circumstances described in the last chapter, concern themselves primarily with the needs of the moment. Rents were being raised; tenants were being evicted. This had to be stopped. Only secondarily did the Legislature address itself to the fundamental need: a plan that would encourage house construction. So secondary in importance has this phase of the emergency legislation been quite generally regarded, that many real estate men are still of the opinion that the net effect of these laws will be practically to halt residential building. There are already indications, however, that this is too pessimistic a .view. Builders and building investors have been quick to see the commercial advantages to be derived from tax exemption and other concessions to new construction incorporated in this emergency legislation. The latest available figures of construction in the Borough of Manhattan, New York City, show that whereas the total amount of building, business as well as residential, according to the plans filed, was twenty per cent less for the first six months of 1921 than for the same period of 1920, the number and value of purely residential struc
Municipal Court Code, $ 6, subdiv. 2 (Laws of 1915, Chap. 279). 12 Id., $ 6, subdiv. 1.
13 Chap. 132, Laws of 1920; Broadway & 94th Street, Inc. v. C. & L. Lunch Co., N. Y. L. J., August 20, 1921 (Mun. Ct., C. of N. Y., Spiegelberg, J.)