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they have been declared, both previously to the present laws, 32 and recently, since their passage, 33 to apply only to persons whose original entry upon the property was wrongful and the wrong remains uncondoned. In the language of one decision,34 “the words 'intruded into' or 'squatted upon' in subdivision 4,35 refer to an original entry in the premises; and it seems clear that the word 'permission,' as used in the latter portion of said subdivision, has reference to permission given to a person to occupy the premises after such person has 'intruded into or squatted upon' the same.”

If a subtenant enters the premises without the landlord's consent, and in violation of an agreement in the tenant's lease that he will not sublet without such consent, it would appear still to be an open question whether the subtenant's original entry may, as to the landlord, be characterized as "wrongful” within the purview of these decisions.

A very recent and noteworthy decision, however, holds that in such a case as this, where the tenant sublets in violation of a covenant in his lease prohibiting subletting, and the lease provides further that if there be default in any of its agreements the landlord may declare the term ended and may have the right to re-enter the premises, without giving notice or resorting to summary proceedings, that the landlord is entitled to an injunction order summarily ousting sublessees to whom the premises have been sublet without

32 Matter of Stockwell v. Washburn, supra.

33 Galligan & Co. v. P. S. M., Inc. (Mun. Ct., 9th Dist., Genung, J.), reported in N. Y. Law Journal, May 9, 1921; Florgus Realty Corp. v. Reynolds (App. Term, 1st Dept.), 187 N. Y. Supp. 188. See also MacArthur v. Walter (App. Term, 1st Dept.), 182 N. Y. Supp. 690.

34 Matter of Stockwell v. Washburn, supra.
ss Code of Civil Procedure, $ 2232; Civil Practice Act, 8 1411.

the landlord's consent. The court decided that such injunctive relief serves to restrain "occupancy contrary to the terms of the lease," and is in the nature of specific performance" of the lease's provisions.36

JANITORS

The question has also arisen whether the emergency laws confer any rights upon a janitor or superintendent occupying an apartment as part or all of his compensation for services. The relationship of the owner and such an occupant is not that of landlord and tenant, 37 but of employer and employee. Outside of the City of New York, summary proceedings are by express terms of the statute allowed against such occupants, 38 but this is in addition to the common-law right of discharge and removal of goods, and of the remedy of ejectment. 39 In any event, the emergency laws, being operative only where the conventional relationship of landlord and tenant exists, would seem to furnish no aid to occupants of this description. Where a janitor or superintendent pays some rent, however, the question is more difficult, and it would seem that he might invoke the protection of the emergency laws. In such case, however, he would still be subject to discharge as an employe, and the rent he would after such discharge have to pay as a tenant would, of course, be determined similarly as in the case of all other tenants.

38 Boskowitz v. Cohn (App. Div., 1st Dept.), 189 N. Y. Supp. 419. 37 McAdam on “Landlord and Tenant," Vol. III, p. 17.

38 Code of Civil Procedure, $ 2231, subd. 1; Civil Practice Act, $ 1410, subd. 1.

39 McAdam on “Landlord and Tenant," Vol. III, p. 17.

SUSPENSION OF SUMMARY PROCEEDINGS

AGAINST "HOLDOVERS"

Having thus defined to what category of property these emergency "possessory” laws are applicable, we may now proceed to consider their other provisions.

The remedy of summary proceedings to oust tenants holding over in dwelling property after the expiration of the terms of their leases is entirely suspended, except in four instances to which reference is hereafter made, in New York City and in cities in counties adjoining thereto 40 until November 1, 1922, by one of these laws. 41 At the same time, it is provided that no warrant shall issue in any “pending" proceeding against a “holdover” tenant, namely, in any proceeding "pending” on the date this law was passed, September 27, 1920. Four classes of exceptions are made in the case of existing buildings, and these will be considered in due course hereafter. New buildings "in course of construction on September 27, 1920, or commenced thereafter," are also excepted from the operation of this law. Holdover tenants in such buildings may, in other words, be dispossessed by summary proceedings, as heretofore.

'PENDING” PROCEEDINGS

What is a “pending” proceeding has been the subject of strenuous litigation. At the time this law was enacted, there were hundreds, if not thousands, of cases before the

40 Westchester and Nassau counties. The cities of Yonkers, Mt. Vernon, White Plains and New Rochelle are the ones affected, outside of New York City.

" Chapter 942 of the Laws of 1920; Code of Civil Procedure, $ 2231, subd. 1-a; Civil Practice Act, $ 1410, subd, 1-8.

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courts wherein a final order awarding the landlord possession of his property had been signed, but the issuance of the warrant had been stayed for various periods, up to a year, by authority of the "stay” law enacted on April 1, 1920.42 The question arose immediately on the passage of Chapter 942, on September 27, 1920, whether a summary proceeding could still be deemed "pending" where the final order had been signed previously to this date, but the issuance of the warrant had been stayed by the court till a date subsequent thereto. It was plausibly argued that in such cases the landlord had, prior to the passage of the new law, acquired a vested right to have a warrant issued on the day stated in the final order, and that this was a property right of which he could not constitutionally be deprived by act of Legislature; and this view was accepted as correct by the Appellate Division of the First Department. 43

The Appellate Division of the Second Department had previously by a divided vote decided otherwise, 44 however, and on appeal to the Court of Appeals, the highest tribunal in the State, this latter view was adopted, 45 and it was accordingly determined that the protection of this provision of the September emergency laws extended to all tenants against whom a warrant had not previously actually issued. 46 What constitutes the issuance of a war

42 Chapter 137, Laws of 1920. By Chap. 948, Laws of 1920, this law was restricted in its operation to the cities of Buffalo and Rochester.

43 People ex rel. H. D. H. Realty Corp. v. Murphy, 194 App. Div. 530, 186 N. Y. Supp. 38.

44 People ex rel. Rayland Realty Co., Inc., v. Fagan, 194 App. Div. 185, 186 N. Y. Supp. 23.

45 People ex rel. Rayland Realty Co., Inc. v. Fagan, 230 N. Y. 653, 654.

40 To same effect, see Meer v. Kornblau (App. Term, May, 1921), 188 N. Y. Supp. 481; Hyman v. Gordon (Mun. Ct., Spiegelberg, J.), 185 N. Y. Supp. 301. This decision is consonant with previous rulings of the Court of Appeals, See Cornwell v, Sanford, 222 N, Y. 248,

rant has been judicially defined in a case which holds that "a warrant is not issued until it is not only signed, but actually delivered for execution, ... to some person authorized to receive it." 47 This was an extreme case. The final order was signed on August 21, 1920, but the warrant was stayed until September 8, 1920. On that day the court announced it would grant no further stay. The landlord, moved by the tenant's importunities, consented to postpone putting him physically out until September 30, 1920, upon condition that the possession of the premises would then be peaceably and quietly surrendered, or if not, that nothing would then be done to resist the execution of the warrant. To these conditions the tenant agreed, and in reliance thereon the court endorsed on the papers a memorandum, “Landlord consents to stay of warrant until September 30, 1920. On that date, the tenant refused to move, relying upon the laws passed three days previously. The court was constrained to hold that “it is not the final order, but only the issuance of the warrant, which annuls the relation of landlord and tenant," 48 and since that relationship still existed on September 30, 1920, the laws passed on the 27th were applicable and prohibited the issuance of the warrant. The court intimated that possibly the tenant's willful failure to comply with a stipulation into which he entered "for the express purpose of securing a mandate of the court in his favor" might be punishable as a contempt of court, 49 but declared it was powerless to grant the relief sought by the landlord.

In another, thus far unreported, case, where the tenant

Tauszig v. Kantor (App. Term, 1st Dept.), 115 Misc. 366, 188 N. Y. Supp. 92, 95, 96.

48 See also in support of this proposition Cornwell v. Sanford, 222 N. Y. 284, Tauszig v. Kantor, supra, page 94,

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