Page images


thereof at a trial regularly held, is insufficient to sustain an order awarding the landlord his property."

In one case it was shown that the landlord had for a number of years resided during the summers in her country home at Stamford, Connecticut, and in the winters at a hotel in the same city. Shortly before demanding tenant's residence in New York City for her own use, she had offered to rent it to him at an increased rent, and had also advertised the premises for sale. It was held that these facts sufficiently indicated the bad faith of the landlord's application.78 Evidence of the offer to rent at an increased rate was held admissible as bearing upon the issue of good faith.

In another case, the landlord occupied a seven-room apartment in a building he owned. His daughter was about to marry, reducing the size of his family; and his wife was too old and infirm alone to care for this large apartment. The tenant occupied a five-room apartment in the same building. The lower court refused to grant the landlord possession of the smaller apartment for his own occupancy except on condition that he permitted the tenant to occupy the larger at the rent fixed. This stand was condemned on appeal, the higher court holding that if the landlord established his good faith, he was unconditionally entitled to the possession of the smaller apartment.79

The foregoing cases serve to show to what a large extent the question of good faith depends, not upon general rules, but upon the particular circumstances attending each application.

While full proof of the prerequisites prescribed by the statute will be required, the courts have also indicated that the

77 Anastasion v. Kopel, supra.
78 Lilliendahl v. Loughman (App. Term, 1st Dept.), 189 N. Y. Supp. 162.
72 Dreyer v. Wiers (App. Term, 1st Dept.), 115 Misc. 629, 189 N. Y. Supp. 73.


language of the act will be reasonably interpreted. Thus, in one Brooklyn case, the tenant's contention that at the time the landlord made his application he was unmarried and therefore could not be said to require possession of the premises for "personal occupancy by himself and his family,” was given short shrift.80

The landlord indicated that he intended at the time of the filing of the petition shortly to marry, but the court held it was not constrained to await the glad event before granting relief.

In another case, a widow without children or dependents, who testified she wanted to use her property as a boarding house, so as to make a living out of it, was held to come within the exception of the statute and entited to recover her house.81

In still another Brooklyn case, it was held as a matter of procedure that the law does not require the landlord to allege in his petition that he is the "owner of record” or “a natural person,” it being sufficient if he establishes such facts to the satisfaction of the court at the trial.8

In this last case, the court also declares that in summary proceedings against objectionable tenants and tenants holding over in houses which it is proposed to demolish,83 the petition need not contain allegations of the facts required by the statute to make such proceedings maintainable. It is sufficient, the court states, if these facts are established to the court's satisfaction at the trial. The opinion itself intimates,

20 Pedecini v. Brock (App. Term, 2d Dept., May 16, 1921, No. 215), memorandum decision, unreported.

81 Knowles v. Trask (App. Term, 2d Dept., Dec. 13, 1920, No. 465), memorandum decision, unreported.

82 Kaplan v. Bernstein (App. Term, 2d Dept.), 115 Misc. 413, 188 N. Y. Supp. 350.

33 See infra, page 86,



however, that the point is not altogether free from doubt. In support of its position, the court points to the difference in the language of the emergency law relating to non-payment proceedings,84 which expressly requires the facts prescribed by the statute to be pleaded in the petition. The language of the exceptions which we are considering contains no such requirement. The court declares furthermore in the case under consideration85 that the right to object to defects of this sort in a petition is waived by a tenant who fails to interpose such objection until after the trial is closed.


We turn now to the third class of exceptions, cases of demolition, in which the landlord is allowed to maintain summary dispossess proceedings against holdover tenants. The law provides that such proceedings may be maintained “where the petitioner shows to the satisfaction of the court that he desires in good faith to recover premises for the purpose of demolishing the same with the intention of constructing a new building, plans for which new building shall have been duly filed and approved by the proper authority.” 858

It will be seen that the court must in these cases be satisfied of the owner's good faith in making the application, and convinced that he does not merely harbor the intention of reconstructing up to the end of the trial, with no real purpose to carry the same out should he be successful in having the tenants ousted.

84 Code of Civil Procedure, $ 2231, subd. 2-a; Civil Practice Act, $ 1410, subd. 2-a.

86 Kaplan v. Bernstein, supra, 188 N. Y. Supp., at page 353.

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

What constitutes “demolishing with the intention of constructing a new building” is not entirely free from doubt. Where a seven-story apartment house having accommodations for twelve families was to be converted into a twenty-five family structure, the change requiring the installation of two new bathrooms and toilets on each floor, the removal of many partitions, the addition of new dumb-waiter shafts, plumbing and fire-escapes, but involving no interference with the foundations, walls, roofs or floors of the building, it has been held that it was "self-evident that it was not intended to demolish this building for the purpose of constructing a new one within the meaning of the Legislature."86

On the other hand, it does not appear necessary entirely to raze an existing building to the ground in order to come within the provisions of this exception. It has been held that where five dwelling houses were to be reconstructed into one large building, to be used as a home for working girls, the interiors being so changed as entirely to destroy the identity of the houses, and the exterior altered so as to provide entrances at each end, instead of a separate entrance for each house, the requirements of the emergency law were sufficiently met.87 The court stated that in its opinion it was not necessáry“to tear down the shell of the building in order to come within the meaning of the expression 'demolishing the same with the intention of constructing a new building.

36 Rosman Realty Corp. v. Quinn (App. Term, 1st Dept.), 115 Misc. 510, 188 N. Y. Supp. 807.

89 Ladies' Christian Union v. DeWattville (Mun. Ct., 4th Dist., Young, J.), reported in N. Y, LAW Journal, January 10, 1921,


The fourth class of exceptions relates to co-operatively owned apartments. The rather complex language of the statute includes within this exception proceedings

"to recover premises constituting a part of a building and land which has been in good faith sold to a corporation formed under a co-operative ownership plan whereof the entire stock shall be held by the stockholders in proportion to the number of rooms occupied or to be occupied by them in such building and all apartments or flats therein have been leased to stockholders of such corporation for their own personal, exclusive and permanent occupancy to begin immediately upon the termination of any tenancy of the apartments or flats leased by them existing on the date when this subdivision takes effect." 878


Difficult questions of law and fact are presented in litigations under this heading, and frequently these litigations are closely contested and long drawn out. Perhaps the bestknown case under this heading is Woodrow Court, Inc., v. Ambrookian,88 the trial of which, held before a jury of twelve men, lasted more than a week. Numerous contentions as to the meaning of the law were raised in this suit. It was claimed that the co-operative corporation, to come within the law, must consist wholly of tenants in possession, without outsiders. The court, referring to the language of the statute, declared that it expressed "a clear intention that the tenant owners may be either in occupation or prospective.” It was further contended that where some of the stock certificates

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

(Mun. Ct., 7th Dist. Lauer, J., December 1, 1920), 113 Misc. 509, 185 N. Y. Supp. 756; aff’d. by Appellate Term, no opinion (not yet reported).

« EelmineJätka »