440 West End Avenue, Inc. v. Dempster

200 A.D. 101, 192 N.Y.S. 902, 1922 N.Y. App. Div. LEXIS 8131

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 3, 1922
• Status: Published

Opinion

Laughlin, J.:

The point presented by the appeal is whether, in view of our emergency Rent Laws, so called, of 1920 (Laws of 1920, chaps. 136, 942-949), a landlord may maintain an action for trespass against a tenant who holds over beyond the expiration of his term. It is perfectly clear that by those statutes the Legislature has forbidden the removal of a tenant who holds over after the expiration of his term, either by a summary proceeding or by ejectment, unless he fails to pay rental for the use of the premises at the former rate without challenging the reasonableness thereof, or to pay a reasonable rental determined in an action for rent as prescribed by said chapter 944. It has been authoritatively adjudged that the statutes are valid enactments. (Marcus Brown Co. v. Feldman, 256 U. S. 198; People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y. 429; Guttag v. Shatzkin, Id. 647; Levy Leasing Co., Inc., v. Siegel, Id. 635.) None of the statutes in express terms abolished or suspended the right of action for trespass; but that, I think, is necessarily implied, for the provisions legalize the possession of the tenant and continue, against the will of the landlord, the relation of landlord and tenant, and, in effect, create a statutory tenancy, provided the tenant sees fit to continue in possession. (See Paterno Realty Co. v. Hattenbach, 115 Misc. Rep. 400; 1217-1221 Madison Ave. Corp. v. Hyman, N. Y. L. J. May 10, 1921; Guttag v. Shatzkin, 194 App. Div. 509.) In Farnham Realty Corp. v. Liberman (197 App. Div. 947) this court affirmed an order overruling a demurrer to a defense interposed in an action like this, where damages for the trespass were alleged on the basis of the rent reserved by the landlord by a lease of the premises to another after the expiration of the term of the tenant in possession, which rental was alleged to be the fair rental value of the premises. The defense there pleaded was that the landlord demanded an unreasonable increase in the rent, and that the tenant refused to pay it and offered to pay a reasonable rental, and that the rent demanded in the complaint was unreasonable. In that case the tenant, instead of challenging the landlord’s right to sue him for trespass, apparently assumed that the landlord was attempting to recover rent or for the use and occupation of the premises as authorized by said chapter 944, and interposed a defense which was authorized by that statute. The landlord demurred to the defense, and the demurrer was overruled at Special Term and by this court without opinion in either court. The record, therefore, does not show whether the court construed the complaint as an action for trespass, which would not lie, on which theory it would have been immaterial whether or not the defense was good, or whether the court construed the complaint as for rent or use and occupation to which the defense would have been clearly authorized. In Paterno Realty Co. v. Hattenbach (supra) the opinion shows that the court did not consider that an action for trespass would lie in such case, but disposed of the appeal on the theory on which the cause was tried, namely, that the action was deemed to be one for the recovery of rent or use and occupation. In 1217-1221 Madison Ave. Corp. v. Hyman (supra) plaintiff alleged that the tenant held over without its consent, and demanded damages. The tenant regarded the action as one under said chapter 944 for rent, and pleaded the defense thereby authorized, and demanded a bill of particulars. The court held that the action could not be maintained as one for trespass, but that it might be maintained as an action for use and occupation, and that, therefore, plaintiff should furnish a bill of particulars as required by the statute. In the case at bar, however, the tenant, instead of attempting to elect to regard the action as one for rent or for use and occupation, and answering, interposing the defense authorized by the statute, demurred, evidently with a view to testing the right of the landlord to maintain an action for trespass. Both parties concede that the complaint is in tort for trespass. I am of the opinion that the action cannot be maintained for the reason that the complaint shows that the defendant, by holding over after the expiration of his term, is lawfully in possession and has become a statutory tenant and is liable to the landlord only for a reasonable rental while he sees fit to remain in possession.

It follows that the judgment should be affirmed, with costs.

Clarke, P. J., Smith, Merrell and Greenbatjm, JJ., concur. Judgment affirmed, with costs.