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In both the foregoing cases, the tenant was a “holdover.” His term had expired, either by virtue of the provisions of the lease, or by virtue of the service and running of the statutory notice, and the landlord thereupon had the right to put him out, either by summary proceedings or by an ejectment action.

The landlord had a similar right to dispossess his tenant where the latter failed to pay rent. Where there was a written lease, the rent therein specified had to be paid, or dispossess proceedings could be brought. Where there was no written lease, the tenant was either a month to month or a monthly tenant. In either case, the landlord had the right to impose what rent he pleased, and if the tenant failed to pay, he could be summarily put out, irrespective of what the rate was. The landlord had the right to prescribe the terms on which either a new or a continued occupancy might be enjoyed. In the case of both written and oral leases, a personal demand for the rent had to be made or a written notice served prior to the institution of summary proceedings for the removal of the tenant. The proceeding could be stayed by the tenant at any stage by paying up the arrears of rent and statutory costs. Where six months' or more rent remained unpaid, the landlord, if


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• Despard v. Walbridge, 15 N. Y. 374; Schuyler v. Smith, 51 N. Y. 309; Stein v. Sutherland, 92 N. Y. Supp. 314; Scully v. Roche, 76 Misc. 458, 135 N. Y. Supp. 633; Farrell v. Woodward, 101 Misc. 560, 167 N. Y. S. 605; Commercial Cable Co. v. McKenna, 168 N. Y. S. 13. See also infra, pages 195, 200.

• Code of Civil Prodecure, 8 2231, Subd. 2; Civil Practice Act, $ 1410, subd. 2. Meyers v. Knights of Pythias, 194 App. Div. (1st Dept.) 405, 185 N. Y. Supp. 436. No particular form of demand is prescribed. A demand by telephone has been held sufficient. Herman v. Messner (App. Term, 2d Dept., Dec. 30, 1920), memorandum decision, unreported.

6 People ex rel. llon v, Nuhn, 92 Misc. 312, 156 N. Y. Supp. 559, aff'd. 173 App. Div. 895.

his lease gave him the right of re-entry for unpaid rent, could also maintain an ejectment action. The tenant could have such action dismissed by paying or tendering the arrears, with interest and costs, at any time prior to final judgment.


Effect of Emergency Laws on Summary Proceedings to

Recover Property from “Holdovers."

The emergency laws do not abolish either ejectment or summary proceedings to recover real estate. They merely suspend and restrict the use of these remedies when invoked under certain circumstances by landlords against their tenants. This restriction operates only in certain parts of the State,--the larger cities,—and in favor of a certain kind of real property,—that “occupied for dwelling purposes.”


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What constitutes occupancy for "dwelling purposes" has been a subject of dispute. The Appellate Division of the Supreme Court, ranking next to the Court of Appeals, the highest court of the State, has held that “where the premises are leased to a tenant not for the purposes of a residence, but for the purposes of a business of subleasing to others, the statute does not apply,” 6 and a decision of the Appellate Term, in Brooklyn, is to the same effect. In each of these cases, the tenant did not personally reside in the premises, but sublet them entirely to others. The court construed the words "occupied for dwelling purposes" to mean “occupied by the

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• Jackson v. Grey, 189 N. Y. Supp. 290; (App. Div., 1st Dept.). This decision reverses the finding of the Appellate Term, which held the emergency statutes applicable.

? Howie v. McKenzie (App. Term, 2d Dept.,), 189 N. Y. Supp. 291.

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tenant for such purposes," 8 and finding that the tenant did not personally occupy, held that he was not entitled to the protection of the emergency laws. His term having expired, it was held that a dispossess warrant might properly issue against him as a holdover.

On the other hand, where the tenant himself resides in the premises, even though he sublets part thereof to roomers or lodgers, the courts have gone far to extend the protection of the statute to him. In one case, the tenant, a widow, occupied only one or two rooms in a sixteen-room house for herself, subletting all the others for profit. It was conceded that the letting of rooms in this house was her sole or principal means of livelihood, and therefore clearly a business. The court held that the protection of the statute should be extended to "all tenants who occupy the premises for the purposes of dwelling therein with their households, including lodgers who form parts of the household, even though the household is supported in whole by the payments made by the lodgers,” and refused to dispossess her. By implication in another case, the Appellate Division later indicated approval of this ruling.

In this connection it is interesting to take note of authority on this point decided prior to the enactment of the housing laws. In construing the question of whether the taking of boarders was a business in violation of a covenant prohibiting the erection of a building "for carrying on any trade or business," it was held: “Taking boarders may or may not be a trade or business. To receive boarders into a


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8 Jackson v. Grey, supra.

May v. Dermont (App. Term, 1st Dept.), 114 Misc. 106, 186 N. Y. Supp. 113. To same effect, see Margolies v. Laird (App. Term, 1st Dept.), 186 N. Y. Supp. 448.

10 See Jackson v. Grey, supra.

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private family is not. . . . But to run a regular boarding house is.11

The question has also arisen whether premises used partly for business and partly for residence are within the protection of the emergency laws, and whether these laws apply to premises leased for business purposes but subsequently occupied, wholly or in part, as dwelling places.

Where premises were leased partly for business and partly for dwelling purposes, it has been held that the landlord, on the expiration of the term, may recover possession of the portion used for business purposes, but not of the residential part. In one such case 12 a two-story building was let for use "as retail cigar, confectionery, stationery and newspaper store and dwelling, and not otherwise.” The dwelling rooms had independent entrances, being accessible to the tenant without passing through the portion of the premises used as a store. The court 13 held that "no reason has been advanced why the landlords here should not recover the possession of that portion of the property which has been and is being used solely for business purposes, even though another portion of the premises is occupied by the tenant for dwelling purposes, provided the tenant be permitted to continue to use such portion,” and accordingly affirmed an order granting a dispossess warrant as to the portion of the premises used as a store.

In another case, the demised premises were a store with dwelling rooms in the rear. 14 Here the court said that

11 Mischlich v. Lubin, 182 App. Div. 703. The language of the housing law, "occupied for dwelling purposes," entitles it to the broader interpretation which has been given it by the courts, to which reference has been made.

12 Bavendam v. Levinson (App. Term, 2d Dept.), 189 N. Y. Supp. 687.

13 By Cropsey, J. See also Rockaway Point Co., Inc. v. Friberg (App. Div., 2d Dept.), 190 N. Y. Supp. 36.

14 Bard v. Fried, Kings County Court, May, J., reported in N. Y. Law Journal, July 2, 1921, page 1180.


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