194 A.D. 509 | N.Y. App. Div. | 1920
This appeal involves the validity of chapter 947 of the Laws of 1920, which was enacted on September twenty-seventh at
On April 1, 1920, when the Legislature enacted the original emergency landlord and tenant legislation, it enacted chapter 131, adding section 2040 to the Penal Law, making the lessor of any building, or part thereof, who was required by the expressed or implied terms of any contract or lease to furnish water, heat, light, power, elevator service or telephone service to any occupant thereof, who willfully or intentionally fails so to do, at any time when the same was necessary to the proper or customary use of the building or any part thereof, or any lessor who willfully and intentionally interferes with the quiet enjoyment of the leased premises by the occupant, guilty of a misdemeanor. That section was further amended by chapter 951 by extending its application to a representative of the landlord and by further extending its provisions.
It thus plainly appears that the legislation to which reference has been made took away for the period of upwards of two years every remedy of any name or nature which a landlord ■had for obtaining possession of his premises where possession was not desired for the exceptional purposes specified in chapter 947, and left the landlord subject to prosecution for the violations of the provisions of section 2040 of the Penal Law if he did not continue to perform the obligations thereby imposed, unless it should be held that it was not intended to continue the contract or lease under which the occupant held, which is a point not presented for decision. The Legislature did not in express terms assume to make a new contract between the landlord and tenants. If chapter 947 be valid, then at most the only remedy left to the landlord for the period of two years, one month and four days was to attempt to elect to hold
I regard this statute also as plainly unconstitutional on the ground that it was the final enactment of the Legislature culminating in the removal of every remedy, excepting in the particular instances started, of an owner for the recovery of the possession of real property occupied for dwelling purposes by tenants whose terms had expired and who were under contract obligations expressed in the leases or implied by law to vacate the premises and surrender possession thereof to the owner or their landlord. The power of the Legislature to take away one remedy and substitute another is not questioned; but that was not done, and the right to an appropriate remedy by an appeal to the courts for the performance of a contract obligation is a part of every lawful contract and is read into it, and the destruction or substantial destruction by such a suspension of that remedy by a legislative act constitutes the taking of property without due process of law. (Gilman v. Tucker, 128 N. Y. 190; Fletcher v. Peck, 6 Cranch, 87; Gantly v. Ewing, 3 How. [U. S.] 707; Planters’ Bank v. Sharp, 6 id. 301; Seibert v. Lewis, 122 U. S. 284; McGahey v. Virginia, 135 id. 662; Ex parte Milligan, 4 Wall. 2; Kring v. Missouri, 107 U. S. 221; Green v. Biddle, 8 Wheat. [U. S.] 1; reargument, Id. 75-84; Bronson v. Kinzie, 42 U. S. [1 How.] 311; Edwards v. Kearzey, 96 id. 595; Effinger v. Kenney, 115 id. 566; Walker v. Whitehead, 16 Wall. [U. S.] 314; McCracken v. Hayward, 43 U. S. [2 How.] 608; Cooley Const. Lim. [7th ed.] 411; U. S. Const. 14th Amendt. § 1; State Const, art. 1, § 6.)
In Walker v. Whitehead (supra) the court said: “ The laws which exist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it. This embraces alike those which affect its validity, construction, discharge and enforcement. Nothing is more material to the obligation of a contract than the means of its enforcement. The ideas of validity and remedy are inseparable, and both are parts of the obligation which is guaranteed by the Constitution against impairment.”
Cooley (supra) says: “ Where a-statute does not leave a party a substantial remedy according to the course of justice as it existed at the time the contract was made, but shows upon its face an intention to clog, hamper or embarrass the proceeding to enforce the remedy, so as to destroy it entirely, and thus impair the contract so far as it is in the power of the Legislature to do it, such statute cannot be regarded as a mere regulation of the remedy, but is void, because a substantial denial of right.”
I have not overlooked the decisions of Edmonson v. Ferguson (11 Mo. 344); Breitenbach v. Bush (44 Penn. St. 313) and Hoffman v. Charlestown Five Cents Savings Bank (231 Mass. 324), in the first two of which it was held competent for the State Legislature to suspend during the Mexican War and the War of the Rebellion actions and proceedings against volun-; teers while absent from the State in the military or naval service of their State or country, and in the last of which, the Soldiers’ and Sailors’ Civil Relief Act (40 U. S. Stat. at Large, 440, chap. 20; Id. 444, § 302), authorizing and requiring the courts in any proceeding commenced against one who is in the military service to enforce an obligation secured by a mortgage or other security in the nature of a mortgage upon real or personal property, where he owns the legal or equitable title, to stay proceedings therein on their own motion
There are precedents for the suspension, for a limited specified time during a financial depression or during war, by general laws, of the enforcement of contract obligations, but such suspension must be general and may not be made to fit individual cases or for particular localities. (Cooley Const. Lim. [7th ed.] 414, 558; Chadwick v. Moore, 8 Watts & Serg. [Penn.] Rep. 49; Stevens v. Andrews, 31 Mo. 205; Bunn, Raigul & Co. v. Gorgas, 41 Penn. St. 441; Hasbrouck v. Shipman, 16 Wis. 296; Bull v. Conroe, 13 id. 233; Holden v. James, 11 Mass. 396; Bender v. Crawford, 33 Tex. 745. See, also, Gilman v. Tucker, 128 N. Y. 190.) That doctrine is founded upon the requirements of the public interests and welfare that the rights of creditors to take the property of their debtors on execution shall be suspended temporarily; but no decision has been cited, and I have found none, sustaimng on any theory
I am, therefore, of opinion that the statute is unconstitutional and void on the two grounds stated.
Since this opinion was written we have been furnished with a copy of the opinion of the United States District Court for the Southern District of New York,' three judges sitting, in Brown Holding Co. v. Feldman (269 Fed. Rep. 306), recently decided, sustaining this statute; but with all due deference to the learned opinion in that case, we must follow our own views.
It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to the defendant to withdraw the demurrer and to answer on payment of the costs of the appeal and the motion.
Clarke, P. J., and Dowling, J., concur; Greenbaum, J., concurs in'result; Merrell, J., dissents.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to defendant to withdraw demurrer and to answer on payment of said costs.