116 Misc. 135 | N.Y. Sup. Ct. | 1921
This proceeding was based upon an allegation that the tenant held over after the expiration of his term.
The tenant had been occupying the whole of a two-story building, No. 340 Franklin avenue, Brooklyn, under a written lease which expired March 1, 1921. The lease had run for five years. It provided that the premises were to be occupied by the party of the second part (tenant) as retail cigar, confectionery, stationery and newspaper store and dwelling, and not otherwise. The premises consist of a store on the ground floor with one room in the rear of it, and rooms on the second floor, but the number of these does not appear. There is a hall leading from the street to the back yard and to the second floor, which is independent of the store, and the room behind the store may also be reached without passing through the store. It was conceded that the tenant used the room behind the store and the rooms on the second floor for dwelling purposes for himself and his family. The tenant’s lease has not been renewed, and since March 1, 1921, he has not remained in possession under any new agreement. made with his landlords, nor created by operation of law, unless so created by the housing legislation passed last September (Laws of 1920, chaps. 942-953). In other words, the tenant is a trespasser and without right to remain in the premises unless such right be given by the recent legislation. But for that legislation the landlords concededly would be entitled to recover possession. What effect, if any, that legislation has had upon the landlords’ right is the question presented. And the landlords do not seek possession under any of the exceptions contained in the September statutes. The sole question is whether they may obtain such possession notwithstanding those laws.
But does it follow that the tenant has the right to
But it is said that such a disposition would be making a new contract between the parties. We think not. The tenant’s lease having expired it is at an end for all purposes. There is no suggestion that the1 tenant has a new or additional term arising out of his. holding over or continuing in possession after the: expiration of the term of the lease. The tenant is not in possession under any agreement with the landlords. He is not a tenant. As has already been stated he is a trespasser unless he is taken out of that category by the September statutes. These statutes really prevent the making of an agreement between a landlord and a tenant for the possession of property to be: occupied for dwelling purposes, for no matter what, rent may be agreed upon, payment of it cannot b.c-enforced and all the landlord can recover. is the
In rendering such a decision the court does not make a new contract between the parties. When the lease expired there was no contract existing .between them, and none has been made since. The only right of the tenant to remain in tlie property is that given by the recent legislation and that applies only to the portion occupied for dwelling purposes. The landlords should obtain possession of the store because these statutes do not give the tenant any right to remain therein. Such a decision seems to be required by the statutes and besides is manifestly just. Under the tenant’s claim if he occupied any portion of leased premises for dwelling purposes he could continue in possession of the whole of the premises notAvithstanding the expiration of his lease, even though the portion so occupied was 'but a small part of the .entire premises. No such right has been given by the legislature, and if it had been given a serious question as to its constitutionality might be presented.
The final order should be affirmed in so far as it awards to the landlord possession of the store and in alh other respects reversed and a final order directed
Kelby and Lazansky, JJ., concur.
Order affirmed.