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The conduct complained of as objectionable must naturally precede the commencement of the dispossess proceedings. Yet in one case it was argued that a landlord may maintain such proceedings only “if the tenant is doing things that are objectionable at the time of the commencement of the proceedings.” The court was asked to hold that where the proceedings were brought in October, acts performed the preceding June were too remote to be admissible as proof of the alleged objectionable conduct. This it refused to do, stating that "subsequent discontinuance of the objectionable acts and remoteness of the time when they were performed are undoubtedly factors to be considered by the jury in regard to the weight to be given to the testimony,” but that such acts, even if remote, were provable.61

A distinction should here be noted between a summary proceeding to oust a “holdover” tenant as objectionable, and one to oust a tenant, whether his lease has expired or not, because immoral or illegal acts are being committed in the demised premises. The latter proceeding is one that has long been specially provided for in the law, and remains unaffected by the emergency legislation. The law provides that a tenant, a lessee at will or a lessee at sufferance may be removed from real property

"where the demised premises, or any part thereof, are used or occupied as a bawdy-house or house or place of assignation for lewd persons, or for purposes of prostitution, or for any illegal trade or manufacture, or other illegal business." 62

Under this provision of the law, a tenant may be ousted at any time. In one case recently brought under this subdivi

61 Klingenbeck v. Young (App. Term, 1st Dept.), 114 Misc. 121, 185 N. Y. Supp. 826.

62 Code of Civil Procedure, $ 2231, subd. 5; Civil Practice Act, $ 1410, subd. 5. sion, lodgers for a single night or periods of less than a week at a time were accommodated by the tenant, in violation of the Tenement House Law, prohibiting the use of a tenement house as a lodging house. 63 The court held this was, by virtue of the prohibition in the Tenement House Law, a use of the property for an “illegal business," and that the tenant should consequently be dispossessed as provided for in the section of the law just quoted.64 In another case, however, it was held that strict proof of the actual use of the premises for immoral purposes was required to oust a tenant under this subdivision, and that proof of mere willingness so to use them was insufficient; and consequently the court refused to dispossess, although it appears that similar proof should have sufficed to establish a tenant's“objectionableness” under the emergency law we have been considering. 65

It seems scarcely necessary to state that where a summary proceeding is brought upon one ground, say, that the tenant is objectionable, proof cannot be offered nor relief granted upon another ground, such as non-payment of rent, though when properly brought a proceeding upon the latter ground would be sustainable. Yet we find that this error in practice is occasionally committed. 66

2. RECOVERY FOR OWNER'S "PERSONAL OCCUPANCY." The second exception to the emergency prohibition of summary proceedings against tenants holding over without leases is stated in the law as follows:

63 Tenement House Law, Consol. Laws N. Y., Chap. 61, § 109.

64 Saportas v. Hayeck (App. T., 1st Dept.), 111 Misc. 620, 182 N. Y. Supp. 295.

66 W. & E. Realty Co. v. Mantell (Mun. Ct., 9th Dist., Lauer, J.), N. Y. Law Journal, July 27, 1921.

66 Wm. Brandt & Co., Inc., v. Osgood (App. Term, 1st Dept.) 185 N. Y. Supp. 680.

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"Where the owner of record of the building, being a natural person, seeks in good faith to recover possession of the same or of a room or rooms therein for the immediate and personal occupancy by himself and his family as a dwelling." 66

In such a case, the law permits a summary dispossess proceeding to be brought against the tenant in occupancy.

It has been judicially declared that the landlord seeking to recover property under this provision must establish each of six distinct prerequisites: (1) that he is the owner of record of the building; (2) that he is a natural person (that is, not a corporation or partnership); (3) that the application is being made in good faith; (4) that the premises sought to be recovered are to be occupied by the petitioner and his family as a dwelling; (5) that such occupancy is to take place immediately upon the tenant's vacating the premises; (6) that the occupancy is to be personal by the petitioner and his family. 67

Where the landlord has made prima facie proof of the facts required by the statute, it has been held that the tenant does not sufficiently establish the bad faith of the application by expressing personal hypotheses, conclusions and appeals to the sympathy of the court, and that where this is the only proof offered by the tenant, the landlord should be permitted to recover his property.68 It has also been held 69 that while the law requires the landlord affirmatively to establish the good faith of his application, the jury may not captiously disregard uncontradicted and unimpeached testimony of the


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

67 Black v. Cousins (Mun. Ct., 5th Dist., Spiegelberg, J.), reported in N. Y. Law Journal, December 28, 1920, page 1044.

6 Siegel v. Graham (App. Term, 1st Dept., June 28, 1921), 189 N. Y. Supp. 94.

69 Burns v. Knight (App. Term, 1st Dept., April, 1921), 187 N. Y. Supp. 504.


landlord establishing such good faith. The court held that under such circumstances a verdict in the landlord's favor should have been directed, as no issue of fact was presented for the consideration of the jury.70 The argument that the landlord, testifying personally, was an interested witness, whose credibility should be left to the determination of a jury, was considered by the court, but it refused to adopt such a rule as binding, relying upon a Court of Appeals decision,from which the following was quoted:

“Where ... the evidence of a party to the action is not contradicted by direct evidence nor by any legitimate inferences from the evidence, and it is not opposed to the probabilities, nor, in its nature, surprising, or suspicious, there is no reason for denying to it conclusiveness."

It has been held in a recent case that a landlord who sought

a possession of four rear rooms, in a building owned by him, solely in connection with a restaurant business conducted by him on the premises, was not entitled to recover.72

Some of the difficulties that exist in administering this law may be gathered from the following statement of the court in one of the cases above mentioned: 73

"It is very easy to declare an intention of personal and immediate occupancy, and very difficult to meet such a declaration with positive proof to the contrary. Unless the petitioner is put to convincing proof of the good faith of his intention, an easy avenue


See, to similar effect, Shields v. Shelton (App. Term, 2d Dept., May 16, 1920, No. 240), memorandum decision, unreported; Lombardi v. Nowacke (App. Term, 2d Dept., June 13, 1921, No. 358), memorandum, unreported.

Littauer, 162 N. Y. 569. 72 Wagner v. Copshull (No. 449, App. Term, 2d Dept., June 20, 1921), memorandum opinion, unreported.

73 Black v. Cousins, supra.

71 Hull v.

would be opened for wholesale evasion of the prohibition of dispossession of tenants. There is nothing to prevent an owner of a building, after obtaining a warrant of dispossession, from changing his alleged intention and using oppressive methods upon the then helpless tenant to exact an unconscionable rent."

The landlord's intent being in these cases directly in issue, it has been held as a proposition of the law of evidence that he may be asked directly at the trial whether his intention is to occupy the premises sought to be recovered in the manner required by the statute, and that the answer to such direct inquiry is admissible evidence in the case.74

It may be well to bear in mind in considering the rights involved in a proceeding brought under this head, the following language, used in a recent opinion: 75

“It is a very serious matter for a court to deprive the owner of a house from getting possession for her own use.”

In this case the landlord had unsuccessfully tried to recover a greatly increased rent from the tenant. Later, she brought the proceeding to recover the property for her personal use. The appellate court held that the prior unsuccessful rent suit did not necessarily establish the bad faith of the later proceeding, and upon the ground that the trial court had indicated its prejudice against the landlord in her effort, set aside its decision and remitted the case for a new trial.

The good faith "animating” the landlord in thus “seeking to obtain the use of the property for personal purposes” needs, however, both to be alleged in the petition and proved at the trial.76 A mere allegation of good faith, without formal proof

74 Kahrs v. Eygabroad (App. Term, 1st Dept.), 114 Misc. 395, 186 N. Y. Supp. 531.

78 Stein v. Eckert (App. Term, 1st Dept.), 188 N. Y. Supp. 469.

76 Kahrs v. Eygabroad, supra; Anastasion v. Kopel (App. Term, 1st Dept.), 189 N. Y. Supp. 79.

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