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proceeding, "pending" on September 27, 1920, when the present law took effect, needs to be discontinued. It will be remembered that the statute provides that no proceeding of this class "shall be maintainable" except in the four excepted classes of cases we have mentioned; and it was therefore argued that any such "pending" proceeding necessarily must be dropped then and there. The statute, however, contains a paragraph relating specifically to "pending" proceedings, which states that in such proceedings "a warrant shall not be issued unless the petitioner establishes to the satisfaction of the court, that the proceeding is one mentioned in the exceptions enumerated in this subdivision." 95

Accordingly it has been several times adjudicated that a holdover summary proceeding "pending" on September 27, 1920, may be prosecuted on through the point of procuring the final order; that the prohibition of the statute applies not to the prosecution of a "pending" proceeding, but to the issuance of a warrant therein. In one such case the landlord desired the entry of the final order so that he might subsequently in a rent action have the benefit of the adjudication of rental value made in the trial of the "holdover" proceeding. The court held he was entitled thereto, there having been a fair trial lasting nearly two days; 96 although it was conceded that the case came within none of the four classes of exceptions provided for in the law and that a warrant, the final relief applied for, could in no event issue therein.

The holding and reasoning in the foregoing case were subsequently fully sustained in the opinion of the Appellate

95 That is, the four classes of exceptions which have been mentioned above. 96 Levy v. Wallenstein (Mun. Court, 9th Dist., Lauer, J.), 185 N. Y. Supp.

Term in a later, similar case."7 Here the tenant sought to have dismissed a proceeding to put out a "holdover," the trial of which was held on September 15, 1920. The court held that

"If the Legislature had intended that all proceedings then (on September 27, 1920) pending must be dismissed if the petitioner fails to allege sufficient facts to show that the proceeding is one mentioned in the exceptions enumerated in that subdivision (Chapter 942, Laws of 1920), or if the evidence produced at the trial prior to the enactment of the statute fails to show such facts, then obviously it was unnecessary to make any special provision in regard to the issuance of the warrant in pending proceedings. There is nothing in the statute to indicate that the Legislature intended the provision in regard to pending proceedings to apply only to proceedings in which a final judgment had already been entered, and to place such construction upon the statute would be entirely unreasonable."

The court in this case also succinctly prescribes the procedure to be adopted in the event that a proceeding 'pending" on September 27, 1920, can by its facts be brought within one of the four classes of exceptions created by the law that day:

98

"The Legislature has made no provision whereby the landlord could amend his petition or furnish the additional proof necessary to bring the proceeding within one of the exceptions enumerated in the statute, except that it has provided that no warrant shall be issued until after such facts have been proven to the satisfaction of the court. The Legislature, therefore, evidently intended that pending proceedings, properly initiated and sustained by proof sufficient to entitle the landlord to a final warrant under the law

97 Levy v. Baum (App. Term, 1st Dept.), 115 Misc. 201, 187 N. Y. Supp. 574. 98 187 N. Y. Supp., at page 576.

as it existed at the time of the trial, should proceed till the entry of the final order, but that a warrant should not be issued upon such final order, except upon additional proof."

The proper manner in which to present such "additional proof" to bring a prior proceeding within one of the four classes of exceptions, would seem to be by a motion for the issuance of a warrant, made after the granting of the final order.99 The court may prescribe an oral hearing upon such application, and this is what was done in the first of the cases just cited. The court held it was not necessary to discontinue the pending proceeding and institute a new one founded upon the facts, establishing that the case comes within one of the excepted classes.

A motion for a warrant is held to be the proper procedure in a "pending" proceeding, also in a Brooklyn case recently decided. 100

There has been some dispute whether a landlord in New York City coming within one of the four classes of exceptions heretofore enumerated need give a monthly or monthto-month tenant the thirty-day notice of election to terminate tenancy required by one of the so-called "permanent" emergency laws. 101 It has been held, in a case where the tenant to be ousted was claimed to be objectionable, that prior to bringing dispossess proceedings, the landlord must terminate the tenancy by the service of such a notice. 102 The court said in this case that

"Hyman v. Gordon (Mun. Ct. Spiegelberg, J.), 185 N. Y. Supp. 301; McGowan v. Stevens (Mun. Ct., 5th Dist., Spiegelberg, J., Dec. 2, 1920), not reported.

100 Targum v. Perlmutter (App. Term, 2d Dept., May 16, 1921, No. 93), memorandum decision, unreported.

101 Laws of 1920, Chap. 209.

102 November v. Farrington (App. Term, 1st Dept.), 187 N. Y. Supp. 476.

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"Chapter 942 of the Laws of 1920 does not give a landlord any right to bring summary proceedings which he did not possess before, but merely enacts a new subdivision . . . limiting the cases in which the landlord may bring such proceedings where the tenant holds over and continues in possession after the expiration of his term.

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"Under Chapter 303 of the Laws of 1882, as amended by Chapter 209 of the Laws of 1920, no monthly tenant or tenant from month to month can be removed from any lands or buildings in the city of New York on the ground of holding over his term, unless 30 days before the expiration of the term the landlord serve upon the tenant a notice to the effect that the landlord elects to terminate the tenancy. Such notice under the statute constitutes a condition precedent to any right of the landlord to maintain summary proceedings under subdivision 1 of section 2231 of the Code of Civil Procedure." 103

The courts have held, however, that the giving of such a notice may be waived by the tenant; as, for example, where the tenant notifies the landlord that he will move on a day certain. 104 The giving of the notice, the court held, is a "condition precedent created solely for the benefit of the tenant," and for that reason "the tenant has a right to waive it, and he does waive it, when he himself gives notice of his intention to remove from the premises. Such waiver does not confer upon the court any new jurisdiction not granted by the Legislature, but merely removes the limitation upon the right of the landlord to bring such proceedings, which the Legislature had seen fit to enact for the benefit of the tenant."

Unless either service of a proper notice or such waiver

1031410 of the Civil Practice Act.

104 A. N. P. Realty Co., Inc., v. Tunick (App. Term, 1st Dept.), 115 Misc. 190, 187 N. Y. Supp. 437.

is alleged, however, it has been held that the petition is jurisdictionally defective and that the proceeding must be dismissed. 105 And where the service is disputed, it must be established by competent proof at the trial, an affidavit of service not sufficing. 106

The question frequently is asked whether the landlord may accept rent while such a notice to terminate a tenancy is running, without by such acceptance losing his rights. This has been answered in a recent case, which holds:

"If, in accordance with the provisions of the statute, the landlord chooses to give a notice of more than thirty days, the tenant has no ground for complaint, and if during the period of such notice the monthly rent becomes due, the landlord is entitled to receive such rent, and loses no rights through the acceptance of what is in any event due him." 107

The same case holds that where there has previously been a monthly tenancy, the acceptance of another month's rent merely continues the tenancy for another month, and does not create an indefinite tenancy, which by statute 108 would continue till the following October first.

105 November v. Binges (App. Term, 1st Dept.), 186 N. Y. Supp. 605.

106 Skelly v. Lehrman (App. Term, 2d Dept., May, 1921), memo. decision, unreported. See also Code of Civil Procedure, § 927.

107 Ginsburg ". Leit (App. Term, 1st Dept.), 187 N. Y. Supp. 450.

108 Real Property Law, § 232, as amended by Laws of 1920, Chapter 130.

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