Municipal Court of New York, May, 1920. [Vol. 112. month to month, a monthly tenant for each month, that he holds over, subsequent to the original hiring, upon the same terms, and that the tenant never agreed to the increased rental so as to make a new hiring under different terms, his possession must be deemed that of a hold over under the original terms, the conventional relations still existing, and not having received the thirty days' notice in the form required by chapter 209 of the Laws of 1920, he is not holding over after the expiration of his term. A monthly tenant has the right to rely upon the law fixing his rights and liabilities for remaining in possession after his month expires, and the only way his tenancy can be terminated and the landlord regain possession in the absence of an agreement to pay more rent, is a default in the payment for the month he holds over, of the same amount of rent paid in the month preceding his holding over or a compliance with chapter 209 of the Laws of 1920. Notifying the tenant that the rent has been increased, and asking him to move if he does not desire to pay the rent, or that summary proceedings will be commenced if the increased rent is not paid, is not a compliance with the statute. Chapter 209, providing, in substance, that no monthly tenant in the city of New York shall be removed for holding over his term unless thirty days before the expiration thereof the landlord serves upon the tenant a notice in writing that the landlord elects to terminate the tenancy and that unless the tenant removes from the premises on the day his term expires, the landlord will commence summary proceedings under the statute to remove him, imposes certain protective duties and restrictions which must be observed by the landlord. Extended as the time has been from five days to twenty and by the latest law to thirty days, Misc.] Municipal Court of New York, May, 1920. it shows an intent to secure to the tenant at least a breathing spell after the shock of the notice to vacate and gives him time to secure other apartments. The fact that thirty days' notice of an increase is given cannot change the principle. The act cannot be circumvented by any such notice of increase but must be strictly followed. This proceeding does not come within section 2231 of the Code and the special act (Laws of 1920, chap. 209), applicable to the city of New York, as it is not one where the tenants right to the continued possession of the premises has been terminated either by the expiration of his term, by the contract of letting or by force of any statute, or by the giving of the statutory thirty days' notice. The facts are contrary to the petition. There was no agreement of hiring at twenty-eight dollars a month in the Fisher case or twenty in the Alberti case. On the contrary, the evidence shows that the tenants did not originally hire the premises on or from May first, never agreed to pay the sums now claimed as rent for the premises that they had occupied for months before at rentals of twenty-three dollars and sixteen dollars, respectively, and that by operation of law, they were tenants holding over at their former rentals. Miller v. Lowe, 86 N. Y. Supp. 16. Judgment for the tenants, and proceedings dismissed. Judgment accordingly. Appellate Term, Second Department, May, 1920. [Vol. 112. JOSEPH SHANIK, Landlord, Appellant, v. EDWARD ECK- (Supreme Court, Appellate Term, Second Department, May, 1920.) The statutes (Laws of 1920, chaps. 130-139, both inclusive) relating to landlord and tenant in the city of New York are all in pari materia, and as they all took effect on April 1, 1920, will be construed together. Chapter 139 of the Laws of 1920, the language of which is simple and clear, relates only to summary proceedings based on non-payment of rent, and in the provision of section 2-a thereof, which declares that such proceedings shall not be maintainable unless the petitioner alleges and proves that the rent of the premises described in the petition is " no greater than the amount paid by the tenant for the month preceding the default for which the proceeding is brought or has not been increased more than twenty-five per centum over the rent as it existed one year prior to the presentation of the petition," the word "or," italicized above, means "or," not "and." Upon the trial of such a proceeding the landlord alone was sworn and after testifying that the rent demanded was an increase of about forty-seven per cent over the rent for the preceding year, that the tenant had paid the increased rental for the last two months but had refused to pay it for the third month, made uncontroverted proof of certain items of annual charges against the property. The tenant gave no testimony that the increased rent was unjust, unreasonable and oppressive, but stood upon the legal presumption raised by the statute (Laws of 1920, chap. 136) that the rent demanded was excessive because it had been increased more than twenty-five per cent over the rent of a year ago. Held, that the presumption that the tenant had pleaded as a defense under chapter 132 of the Laws of 1920 that the increased rent was unjust, unreasonable and oppressive was rebutted by the undisputed testimony of the landlord and that the defense had failed. Misc.] Appellate Term, Second Department, May, 1920. Held, further, that a final order dismissing the petition of the landlord who, during the trial, had been allowed to amend his petition by substituting for the word "or" the word "and" after the words "is brought" will be reversed and a new trial granted to give the tenant an opportunity of proving that the rent demanded was unjust, unreasonable and oppressive. APPEAL by landlord from a final order of the Municipal Court of the city of New York, borough of Brooklyn, seventh district, dismissing his petition in summary proceedings. Richards, Smyth & Conway (Albert Conway, of counsel), for landlord, appellant. Tenant, respondent in person. Abraham J. Halprin, amicus curiæ. CLARK, J. Appeal from a final order in summary proceedings, dismissing the landlord's petition, in which the possession of demised premises was demanded for non-payment of rent. The petition, verified April 17, 1920, and filed April 19, 1920, alleges that on or about February 15, 1920, the landlord and tenant entered into an agreement, by the terms of which the tenant hired the premises for one month and one month only, and promised to pay the landlord the sum of twenty-eight dollars a month, payable monthly in advance, on the fifteenth day of each month thereafter, during the occupancy, for the use and occupation thereof, and thereupon entered upon the occupation of said premises. The petition further contains the following clause: "The Petitioner further alleges that the rent of the premises described herein is no greater than the amount paid by the Tenant for the month preceding the default for which this proceeding is brought; and has not been increased more than 25 percentum over the rent as it existed one year prior to the Appellate Term, Second Department, May, 1920. [Vol. 112. time of the commencement of this proceeding." During the trial the landlord was allowed to amend his petition by substituting for the word "and" (following the words "is brought ") the word "or." Continuing, the petition alleges that, on April 15, 1920, there was due to the landlord under and by virtue of said agreement the sum of twenty-eight dollars for one month's rent of the premises from April 15, 1920, to May 14, 1920; that the rent had been demanded from the tenant personally since it became due; that the tenant had made default in the payment thereof, and that he held over without the permission of the landlord after such default. April 19, 1920, there was issued a precept for non-payment of rent, returnable April 23rd. Endorsed upon the petition, over the signature or initials of one of the justices of the Municipal Court, appear these words: "The tenant answers: General denial. Excessive Rent. April 23, 1920;" also the following "Word' and' amended to read or in line 21 of petition. April 28/20." The proceeding was tried April twenty-eighth, and, on May fifth, judgment by final order was rendered, dismissing the petition. Upon the trial the landlord alone was sworn. He testified that the rent of the premises one year ago was $19 a month; that the rent demanded is $28 per month (an increase of about forty-seven per cent); that the tenant had paid $28 for the last two months, but refused to pay $28 for the third month. After proving the above essential facts, which were not controverted, the landlord testified to the cost of the property, to mortgages thereon, to the amount of janitor's wages, taxes, fire insurance premium, liability insurance premium, to the cost of repairs, coal and electric light, to fees paid for collecting rents and as to depreciation. The above items, with others here omitted, are claimed |