only. The question of constitutionality has been raised in relation to this bill.

"The bill is placed upon the broad principle of the police power of the State. There has never been a time where the State was denied the power to interfere with the right of private property where the safety, health and morals of the community demanded it. The police power for the protection of the public welfare has recently been vastly extended and the courts have held that a public use does not mean a direct use by the entire public.22

CHAPTER 944, LAWS OF 1920 23

Section 1. Chapter one hundred and thirty-six of the laws of nineteen hundred and twenty, entitled "An act in relation to defenses in actions based upon unjust, unreasonable and oppressive agreements for rent of premises occupied for dwelling purposes in cities of the first class or in cities in a county adjoining a city of the first class," is hereby amended to read as follows:

§ 1. Unjust, unreasonable and oppressive agreements for the payment of rent having been and being now exacted by landlords from tenants under stress of prevailing conditions whereby the freedom of contract has been impaired and congested housing conditions resulting therefrom have seriously affected and endangered the public welfare, health and morals in certain cities of the state, and a public emergency existing in the judgment of the legislature by reason thereof, it shall be a defense to an action for rent accruing under an agreement for premises in a city of the first class or in a city in a county adjoining a city of the first class occupied for dwelling purposes that such rent is unjust and un

22 There follows in the explanation a lengthy legal argument on the police power, which we may properly omit here, since the Courts have been called to pass upon the question.

23 In effect Sept. 27, 1920, amending Chapter 136, Laws of 1920. Amended by Chapter 434 of the Laws of 1921, which follows after the printing of the present Chapter 944.

reasonable and that the agreement under which the same is sought to be recovered is oppressive.

§ 2. Where the answer contains the defense mentioned in section one of this act, the plaintiff within five days after the filing of the answer or within such time as the court upon good cause shown may determine, shall file with the clerk of the court a verified bill of particulars, setting forth the gross income derived from the building of which the premises in question are the whole or a part; the number of apartments in the building and the number of rooms in each apartment, and the number of stores in such building; the rent received for each such apartment or store for the period of one year last past; the consideration paid by the landlord for the building, if he be the owner thereof, or if he be a lessee the rent agreed to be paid by him; the assessed valuation of the property and the taxes for the current year; the annual interest charge on any incumbrance paid by the landlord; the operating expenses with reasonable detail; and such other facts as the landlord claims affect his net income from such property. Issue shall not be deemed joined until the filing of such bill of particulars. Upon the plaintiff's failure to file said bill of particulars within the time limited the court upon motion of the defendant shall dismiss the complaint.

§ 3. Where it appears that the rent has been increased over the rent as it existed one year prior to the time of the agreement under which the rent is sought to be recovered, such agreement shall be presumptively unjust, unreasonable and oppressive.

84. Nothing herein contained shall prevent the plaintiff from pleading and proving in such action a fair and reasonable rent for the premises and recovering judgment therefor, or from instituting a separate action for the recovery thereof.

85. If in an action against the occupant of premises for rent and for the rental value of the use or occupation thereof, the plaintiff recovers judgment by default, the judgment shall contain a provision that if the same be not fully satisfied within five days after entry and service upon the defendant of a copy thereof, the plaintiff shall be entitled to the premises mentioned in the complaint and to the direction that a warrant shall issue commanding the sheriff, marshal or other

officer charged by law with the duty of executing judgments to remove all persons therefrom.

§6. If in any action for rent or rental value, the issue of fairness and reasonableness of the amount demanded in the complaint be raised by the defendant, he must at the time of answering deposit with the clerk such sum as equals the amount paid as rent during the preceding month or such as is reserved as the monthly rent in the agreement under which he obtained possession of the premises. If the defendant fail to make such deposit, the court shall strike out the denial or defense raising such issue. Such deposit shall be applied to the satisfaction of the judgment rendered or otherwise disposed of as justice requires. Where a judgment is rendered for the plaintiff it shall contain a provision that if the same be not fully satisfied from the deposit or otherwise within five days after the entry, and service on the defendant of a copy thereof, the plaintiff shall be entitled to the premises described in the complaint and a direction that a warrant shall issue commanding the sheriff, marshal or other officer charged by law with the duty of executing judgments to remove all persons therefrom.

87. Whenever the court in which the action is brought has jurisdiction to vacate a judgment rendered upon default, it shall have power to open a default in an action mentioned in section five of this act to vacate, amend, correct or modify any process, judgment or warrant in furtherance of justice for any error in form or substance, and to grant a new trial upon any of the grounds for which a new trial may be granted by the supreme court in an action pending therein.

§8. In case of an appeal by the defendant, the execution of the judgment and warrant shall not be stayed, unless the defendant shall deposit with the clerk of the court the amount of the judgment and thereafter monthly until the final determination of the appeal an amount equal to one month's rental computed on the basis of the judgment. The clerk shall forthwith pay to the plaintiff the amount or amounts so deposited.

§ 9. This act shall not apply to a room or rooms in a hotel containing one hundred and twenty-five rooms or more, or to a lodging house or rooming house occupied under a hiring of a week or less.

§ 10. This act as hereby amended shall not apply to a new building in the course of construction at the time this amendment takes effect or commenced thereafter and shall be in force until November first, nineteen hundred and twenty-two.

§ 2. This act shall take effect immediately.

COMMITTEE'S EXPLANATION

THE RIGHT TO SET UP THE DEFENSE THAT THE RENT IS UNJUST AND UNREASONABLE, AND THE AGREEMENT IN RELATION TO THE SAME OPPRESSIVE

"The 25 per cent clause which was in the bill passed at the last session has been stricken out because it was found to have been so generally misunderstood by the public, and in some cases misapplied by the courts.

Under this new act where the landlord sues for his rent the burden of proving that the rent is just and reasonable is upon the landlord if the rent has been raised over the rent as it existed one year prior to the agreement upon which the action is brought.

Experience has shown that when the reasonableness of the rent has become an issue, the tenant was very much at a disadvantage at the trial, when a long schedule of income and expenses was introduced on behalf of the landlord. The tenant had no means of meeting the issue, not knowing in advance what the figures were. It has been provided that if the defense of unreasonableness be set up, the landlord shall furnish a bill of particulars which will apprise the tenant of the claims that he must meet and give him a reasonable opportunity to test the accuracy of the landlord's claim as to his expenses and income. This will work no great hardship upon the landlord, as he would naturally be compelled to produce these figures in any event and they are all within his knowledge and control.

"The only way that the landlord can obtain an increase of rent at the present time is by bringing this action and getting before the court the question whether the rent that he demands is fair and

reasonable. The case may be tried by the judge, or, if either party demands it, before a jury. It might well be that a tenant, who was financially irresponsible, might suffer a judgment to be taken against him which would be worthless, and there would be no way in which the landlord could either recover his property or get his rent therefor. This, of course, would be a great injustice. It has, therefore, been provided that if the tenant sets up the defense that the rent is unjust and unreasonable he must deposit one month's rent with the clerk of the court. When the case is tried and a judgment rendered, the judgment is then satisfied out of the money deposited, if it be sufficient, and if not the tenant must pay the additional amount within five days, or the landlord may have a warrant to remove him from the premises.

"If the tenant desires to appeal the case he must pay the amount determined by the court to be the fair monthly rent into court each month until the appeal is decided. This provision was made because it was thought in many cases it might be burdensome for a tenant to procure a bond. He always has the amount of his rent each month, and it is no hardship to pay the installments monthly to the clerk of the court. It is believed that by this action the rights of both parties are protected and each has an opportunity for his day in court, and no tenant will be forced out of his home so long as his rent is paid.

"Hotels containing 125 rooms or more, and rooming houses occupied under a hiring for a week or less are exempted.

"This bill does not apply to buildings in course of construction or commenced after this act takes effect."

CHAPTER 434, LAWS OF 1921 24

Section 1. Chapter one hundred and thirty-six of the laws of nineteen hundred and twenty, entitled "An act in relation to defenses in actions based upon unjust, unreasonable and oppressive 24 In effect April 30, 1921. Amending Chapter 136 as amended by Chapter 944 of the Laws of 1921. Matter in italics is new; matter in brackets [] is old law omitted.