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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," as amended by chapter nine hundred and forty-four of the laws of nineteen hundred and twenty, 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 unreasonable and that the agreement under which the same is sought to be recovered is oppressive. But such defense shall not be allowed if it appear that the defendant pursuant to the terms of such agreement has paid after the commencement of the term and after this section as amended takes effect three successive monthly instalments of rent, which accrued under such agreement.25

§ 2. Where the answer contains the defense mentioned in section one of this act and the deposit provided for by section six has been made, 26 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.

26 First Amendment. 26 Second Amendment.

83. 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.

$ 4. 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.

$5. If in an action (against the occupant of premises]” for rent [and] or for the rental value of the use or occupation (thereof) of premises, 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. Service of a copy of the judgment shall be made personally, or if personal service cannot be made, by leaving the same at the residence of the defendant with a person of proper age.

$ 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 (dur

28

27 Third Amendment. 2 Fourth Amendment,

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ing the preceding month or such as is) 29 or rental value of the premises in arrears computed at the monthly rate of the rent last paid or 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. Where the defendant is obliged to deposit a sum computed at the monthly rate of the rent last paid, the clerk shall, on demand by plaintiff, pay to the plaintiff the amount so deposited, and thereafter during the pendency of the action the defendant, on demand, shall pay such monthly rent directly to the plaintiff, on the first day of each monthly rental period.

Where the defendant is obliged to deposit a sum computed at the rate reserved as the monthly rent in the agreement under which he obtained possession the plaintiff on five days' notice to the defendant may apply to the court for an order permitting him to withdraw such deposit or such part thereof as the court may direct pending the final determination of the action and thereafter during the pendency of the action the defendant on demand shall pay a proportionate amount monthly on the first day of each monthly rental period to the plaintiff and shall deposit with the clerk the difference between such monthly payment and the amount so reserved in such agreement. Money heretofore deposited in court by a defendant in such an action shall be payable to the plaintiff in accordance with the provisions of this section.

No payment need be made by a defendant to a plaintiff unless such plaintiff shall at the time of the demand tender a receipt for the amount demanded. Any such payment and the receipt regardless of its terms, stipulations or qualifications, shall be without prejudice to the rights of either party to the action. If the defendant refuses to make any such additional payment to the plaintiff during the pendency of the action the court on motion of the plaintiff may strike out the denial or defense raising the issue of fairness and reasonableness of the amount demanded in the complaint. All moneys remaining in the hands of the clerk to the credit of the action 30 [Such deposit) shall be applied to the

Fifth Amendment, beginning. 30 Fifth Amendment, end.

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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. The plaintiff shall be entitled to costs only in the event that he recover the full amount demanded in the complaint 31

7. Where there has been an adjudication of the reasonable rental value of premises, such adjudication shall determine and be binding in any subsequent action between the same parties involving the rental value of the same premises for a subsequent period, unless the plaintif or the defendant, as the case may be, plead and prove facts which shall have arisen since the period for which the prior adjudication has been made, affecting the rental value of the premises.32

$ [7]8. 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 (8]9. 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.

31 Sixth Amendment. 32 Seventh Amendment.

8 (9)10. This act shall not apply to a room or rooms in a hotel containing one hundred twenty-five rooms or more, or to a lodging house or rooming house occupied under a hiring of a week or less.

11. Every such action shall be brought in the county in which such premises are situated, if the action be brought in the supreme or county court; or in the municipal court district in which such premises are situated, if the action be brought in the municipal court of a city 33

8 [10]12. This act as hereby amended shall not apply to a new building in the course of construction (at the time this amendment takes effect] on September twenty-seventh, nineteen hundred and twenty, 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 OF AMENDMENTS 34

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The first amendment provides that a tenant who has paid three monthly instalments of rent which have accrued after the term has commenced and after this act as amended takes effect cannot then set up the defense that the rent is unjust. Some courts held that if a tenant had paid an increased rent he could not then take advantage of the defense. This amendment makes it plain that the defense can be interposed until three monthly payments have been made. In other words, the tenant has sixty days to find out what he should do. The landlord is benefitted in that he knows that his rental is established when three monthly payments have been made.

The second amendment provides that when a tenant files his answer and deposits the rent at the old rate, the landlord must then file the bill of particulars. It was found that many tenants filed answers but failed to pay the rent in court. This amendment will save much time and trouble to clerks of court and to owners.

** Eighth Amendment.

3* The Committee's explanation of the laws amended by this law will be found above, following the printing of those laws in this Appendix. They are Chapters 136 and 944 of the Laws of 1920,

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