judge or justice 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 petitioner's failure to file said bill of particulars within the time limited, the court, judge or justice upon motion of the defendant shall dismiss the proceeding. This subdivision shall not apply to a room or rooms in a hotel containing one hundred and twenty-five rooms or more, or a lodging house, or rooming house, occupied under a hiring of a week or less. This subdivision as amended shall not apply to a new building in course of construction at the time this amendment take effect or commenced thereafter and shall be in effect only until the first day of November, nineteen hundred and twenty-two.

CHAPTER 374, LAWS OF 1921 41

Section 1. Subdivision two-a of section twenty-two hundred and thirty-one of the code of civil procedure is hereby amended to read as follows:

41 Effective April 30, 1921. By the repeal of the Code of Civil Procedure effective October 1, 1921, this law becomes inoperative after that date. The contents, however, are incorporated in the Civil Practice Act, which becomes operative October 1, 1921. See Chapter 371 of the Laws of 1921, printed herein. This supersedes Chapter 945 of the Laws of 1920, which in turn superseded Chapter 139 of the Laws of 1920.

Matter in italics is new; matter in brackets [ ] is old law to be omitted.

2-a. No proceeding as prescribed in subdivision two of this section shall be maintainable to recover the possession of real property 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, unless the petitioner alleges in the petition and proves that the rent of the premises described in the petition is no greater than the amount for which the tenant was liable for the month preceding the default for which the proceeding is brought. Nothing in this subdivision shall preclude the tenant from interposing any defense that he might otherwise have. The tenant may interpose the defense that the rent mentioned in the petition is unjust and unreasonable and that the agreement under which the same is sought to be recovered is oppressive [, and if such defense be interposed, then the petitioner within five days after the filing of the answer or within such time as the court, judge or justice 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 encumbrance paid by the landlord; the operating expenses with reasonable detail; and such other facts as the landlord claims affects his net income from such property. Issue shall not be deemed joined until the filing of such bill of particulars. Upon the petitioner's failure to file said bill of particulars within the time limited, the court, judge or justice upon motion of the defendant shall dismiss the proceeding]. All the provisions of chapter one hundred and thirty-six of the laws of nineteen hundred and twenty, as amended, shall apply to a proceeding brought under this subdivision so far as applicable and not in conflict with the provisions of this subdivi

sion and other provisions of statute governing summary proceedings to recover the possession of real property. This subdivision shall not apply to a room or rooms in a hotel containing one hundred and twenty-five rooms or more, or a lodging house, or rooming house, occupied under a hiring of a week or less. This subdivision as amended shall not apply to a new building in course of construction [at the time this amendment takes effect] September twenty-seventh, nineteen hundred and twenty, or commenced thereafter and shall be in effect only until the first day of November, nineteen hundred and twenty-two.

§ 2. This act shall take effect immediately.

COMMITTEE'S EXPLANATION OF CHAPTER 139

"This bill in effect provides that in case of leases of one year or less the landlord cannot avail himself of summary proceedings for non-payment of rent, unless the rent involved is no greater than the amount paid by the tenant for the month preceding the default, or has not been increased more than 25 per cent. in one year. By its terms the bill applies only to leases for one year or less. It was not thought wise to extend it to leases for a longer period. If it were to include leases for more than one year it would practically amount to a denial of the remedy of summary proceedings for non-payment of rent, as the increase in such cases, in most instances, were properly more than 25 per cent. It is not the purpose of the bill to declare that 25 per cent., or any other rate, is proper, but it will work justly in most cases.

"If non-payment proceedings are brought where an extortionate rent has been charged in leases for more than one year, no matter what the percentage is, the tenant, by virtue of Section 2234 of the Code, will have the right to set up any defense which he might have if the claim for rent was the subject of the action. One of such defenses would be that the rent was unjust and unreasonable.

"As to the constitutionality of this bill there can be no

doubt. It has to do with the curtailment of the remedy which is purely statutory. The remedy of summary proceedings was placed upon the statute books about a century ago. Before that time the landlord who sought to recover possession of real property was limited to the common law action of ejectment. The Legislature may abolish any statutory remedy which it has created, and by parity of reasoning it may curtail the same and place any conditions it pleases upon the exercise of such statutory remedy.

"This bill applies to cities of the first class and Westchester County, and remains in effect until November 1, 1922, only."

COMMITTEE'S EXPLANATION OF CHAPTER 945

PROCEEDINGS TO DISPOSSESS FOR NON-PAYMENT OF RENT

"" This amendment strikes out of the law as it now exists all reference to the so-called twenty-five per cent clause. No non-payment proceedings are maintainable where the rent has been increased over the amount for which the tenant was liable for the month preceding the default for which the proceeding is brought. If the landlord believes he is entitled to increase the rent his remedy will lie in action for the rent.

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.

Hotels containing 125 rooms or more, and rooming houses

occupied under a hiring for a week or less are exempted. The reason for this is that it was found there were many apartment houses having a restaurant connection claiming that they were hotels. They rented their apartments on long leases, just the same as the owners of other apartment houses, and it was thought only fair that the same law should apply to both.

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

COMMITTEE'S EXPLANATION OF CHAPTER 374

"If the proposed amendments to Chapter 944 of 1920 are adopted, it is necessary to amend Chapter 945 to perfect and simplify procedure and avoid a lengthy repetition of the statute in this section."

CHAPTER 371, LAWS OF 1921 42

Section 1. Subdivision two-a of section fourteen hundred and ten of the civil practice act is hereby amended to read as follows: 2-a. No proceeding as prescribed in subdivision two of this section shall be maintainable to recover the possession of real property 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, unless the petitioner alleges in the petition and proves that the rent of the premises described in the petition is no greater than the amount for which the tenant was liable for the month preceding the default for which the preceeding is brought. Nothing in this subdivision shall preclude the tenant from interposing any defense that he might otherwise have. The tenant may interpose the defense that the rent mentioned in the petition is unjust and unreasonable and that the agree

42 In effect October 1, 1921. This law makes effective after October 1, 1921, the amendment effected by Chapter 374 of the Laws of 1921, which amended section 2231 of the Code of Civil Procedure, which is repealed effective October 1, 1921.

Matter in italics is new; matter in brackets [ ] is old law to be omitted.