lord by subsection four of the law we are considering, ' which reads:

"Nothing herein contained shall prevent the plaintiff from pleading and proving in such action a fair and reasonable rent for the premises and recovering judgment therefor, or from instituting a separate action for the recovery thereof."

"Such action" is the action referred to in subdivision one of the same law, namely, "an action for rent accruing under an agreement for premises in a city of the first class or in a city in a county adjoining a city of the first class occupied for dwelling purposes."

It is most peculiar that this important right, the right of the landlord to claim from the tenant a "reasonable rent," is conferred in the negative language of subsection 4, now under consideration. It will be observed that the statute does not read that the "landlord shall have the right The statute merely says that "nothing herein contained shall prevent ." The Legislative Committee's explanation indicates an intention through the medium of this provision to give the landlord the right to secure a reasonable rent where the tenant avails himself of the statutory defense that the rent agreed upon is unjust and unreasonable, for it says:

"The only way that the landlord can obtain an increase of rent at the present time is by bringing this action. . .

ONLY TENANT ENTITLED TO QUESTION VALIDITY OF LEASE

The statute does not confer upon the landlord the right to repudiate a lease entered into with a tenant. He is bound Chap. 944, Laws of 1920, as amended by Chap. 434, Laws of 1921. 'See Appendix B, page 307.

in any event. Should he sue in the first instance to recover a reasonable rent, in a case where a lease had been agreed upon, the tenant, if he so desires, may insist upon the agreement entered into between them and plead it in defense of the landlord's action for reasonable rent."

RIGHTS AND REMEDIES OF LANDLORD PRIOR TO "HOUSING LAWS ”—PRESENT RIGHTS CONTRASTED

Prior to the enactment of these Housing Laws, so called, a landlord, at his election, could treat a tenant holding over, either as tenant for another term of a year, or possibly less under certain tenancies, or as a wrongdoer, a trespasser."

If prior to the expiration of a tenant's lease, the landlord notified the tenant that if he held over after the lease expired, his rent would be at a stated increased rate, the tenant would be liable if he held over for rent at that increased rate, even if he dissented therefrom. The law, prior to the emergency laws, spelled out of the holding over under such circumstances a lease for another year upon all the terms of the previous letting except amount of rental, and disregarded the tenant's dissent.

8

Under these new Housing Laws, the landlord no longer has the right to regard a tenant holding over after the expiration of his term as a wrongdoer nor to impose an increased rent, for the tenant holds over by leave of the statutes. "The landlord is compelled to accept the tenant

• Riccobono v. Cleary, 114 Misc. 174, 186 N. Y. Supp. 925 (City Ct. of N. Y.), Callahan, J.

'Schuyler v. Smith, 51 N. Y. 309; Haynes v. Aldrich, 133 N. Y. 287; U. M. R. & Impt. Co. v. Roth, 193 N. Y. 570; Herter v. Mullen, 159 N. Y. 28, 42.

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. Supp. 605; Commercial Cable Co. v. McKenna, 168 N. Y. Supp. 13.

as a hold-over without any alternative of treating him as a trespasser.

The right to an action in ejectment is taken from the landlord by one of these laws. 10 The landlord's sole right is to recover from such a "holdover" a "fair and reasonable rental for the premises." 11

A good statement of the change made by the emergency law is contained in a recent case in the City Court of the City of New York:-12

"While the right to maintain all heretofore existing actions to recover possession as well as to recover damages for trespass have been temporarily abrogated, nevertheless a comprehensive substitute for the possessory remedies' is found in the newly created right to recover the fair and reasonable rent or rental value of the premises. It is incontrovertible that prior to the Housing Laws it was necessary to allege and prove the conventional relation of landlord and tenant created by voluntary agreement in order to maintain an action for use and occupation. The authorities for this proposition, if desired, can readily be found in McAdam on Landlord and Tenant. It is equally sure that heretofore in an action for use and occupation predicated on a holding over the measure of damages is the rent reserved in the agreement and not the rental value (Stevens v. City of N. Y., 111 A. D., 362).”

After calling attention to the various propositions heretofore referred to respecting the position of the landlord by virtue of these rent laws, the justice draws the following

'Rogan v. Weiss, 115 Misc. 193, 187 N. Y. Supp. 443 (App. Term, 1st Dept.); Michael E. Paterno Realty Co. v. Hattenbach, 115 Misc. 400, 188 N. Y. Supp. 444 (App. Term, 1st Dept.); McKenna v. Regensburg, N. Y. L. J., Feb. 23, 1921 (Supreme Ct., N. Y. Co., Guy, J.), page 1776.

10 Chap. 947, Laws of 1920, sustained in Guttag v. Shatzkin, 230 N. Y. 647. See Jones v. Sickle, N. Y. L. J., April 2, 1921, page 24 (Supreme Ct., Mullan, J.). 11 Chapter 434, Laws of 1921, § 4.

12 Jones v. Sickle, N. Y. L. J., June 14, 1921, page 972, Schmuck, J.

conclusion in respect to the maintenance of an action to recover reasonable rental value under the statute:

“Therefore, refusing support to any proposition founded upon the assertion of the existence of any condition, circumstance or situation justifying the total destruction of rights and responsibilities in disputes between individuals, as that would be equivalent to a predication of a state of virtual anarchy, it must be held that under the present state of the law a landlord has the right to maintain an action for the fair and reasonable rent or rental value of the premises used and occupied by the tenant holding over after the expiration of the lease regardless of any agreement or circumstance the intendment of which is to indicate the assumption of the conventional relation, for it must be determined that the law as it now stands has arbitrarily, because of the anomalous emergency, presumed such a relationship. To hold otherwise is to deny any redress whatever." 13

It is a fair conclusion from the authorities so far decided, that a tenant holding over after the expiration of his term is liable for the reasonable value of the use and occupation of the premises.

RIGHTS OF NEW LESSEE WHERE OLD LESSEE HOLDS OVER

It has been held, however, that where the landlord has leased the premises to a new tenant and the old tenant holds over and refuses to move out, the new lessee and not the landlord is the one to maintain the action for the fair rental or rental value of the use and occupation.14

13 To similar effect are the cases of Shirley v. Ryan, N. Y. L. J., May 14, 1921 (City Court of N. Y., Valente, J.), page 587; McKenna v. Regensburg, supra; 17 & 19 East 95th St., Inc., v. Bernstein (Mun. Ct., N. Y. City, Lauer, J.), 114 Misc. 513, 186 N. Y. Supp. 916.

14 Durham Realty Corp. v. Ansbacher (City Ct. of N. Y., Schmuck, J.), N. Y. L. J., July 16, 1921, page 1279, citing U. M. Realty & Impt. Co. v. Roth, 193 N. Y. 570.

If the new lessee seeks to enforce his claim against the tenant in possession, he will himself be obligated to pay rent under the lease with the landlord. He will not, of course, in such case be allowed to play fast and loose with the lease into which he has entered with his landlord.

In the case just referred to it was held that a lease made to one not in occupation of premises where the old tenant was in possession was not void because of the provisions of the Housing Laws, limiting the rights of one ordinarily entitled to possession to the mere right to demand and receive rent. The court said that such a lease "may be voidable by reason of the fact that the landlord is unable to give the right of possession." 15

In another case, a new tenant sued to recover a deposit he had made with the landlord under his lease. The landlord, who was unable to give possession because the old tenant held over in reliance upon the emergency laws, counterclaimed for the rent for the period elapsed since the beginning of the term of the new lease.

The court held that the landlord must return the deposit made and that the new tenant' is relieved from the payment of rent under his lease by the fact that the landlord had failed to give him possession. The court held that the consideration of the lease failed and performance became impossible not by reason of the acts of either party, but through the sovereign power of the State. "The statute," the court declared, "deprived the defendant (the landlord) of its ability to perform. In view thereof the parties must be restored to their position as if no lease had been signed." 16

15 Durham Realty Corp. v. Ansbacher (City Ct. of N. Y., Schmuck, J.), N. Y. L. J., July 16, 1921, page 1279.

16 Goldsmith v., Marcus Brown Holding Co. (Mun. Ct., 5th Dist., Manhattan, Spiegelberg, J., April 18, 1921), not yet reported.