197 A.D. 693 | N.Y. App. Div. | 1921
The complaint alleges that on March 26, 1920, the defendant entered into an agreement of lease with the plaintiff in the terms of renewal of a lease under which defendant was then in possession of an apartment at 1155 Park avenue, New York city, for a three-year term commencing October 1, 1920, at an annual rental of $5,750 and that the rent for the first three months of this term and electric charges had not been paid by the defendant, amounting to $1,461.45, for which sum judgment is asked.
The answer, after alleging certain denials which are unimportant here, sets up as a separate and distinct defense that the alleged lease was signed by the defendant under pressure and duress; that at the time of malting the lease he occupied the premises under a lease expiring September 30, 1920, at an annual rental of $2,400; that on March 26, 1920, plaintiff refused to renew the lease for a new term at a reasonable.
It appears from the papers on appeal that the learned justice at Special Term who granted plaintiff’s motion for judgment on the pleadings accompanied it with the following memorandum: “ It being conceded by the parties that the Rent Laws of 1920 are not relied on to determine the issues herein, the motion for judgment on the pleadings is granted, with costs.”
Counsel for the appellant here contends that it was not his intention at Special Term to lead the court to think that he had made the concession mentioned in the foregoing memo
Counsel for the respondent, however, calls our attention to the fact that the memorandum submitted by the appellant’s counsel at Special Term opened with the statement that “ the defense is common law duress,” and concluded as follows: “ A strictly common law defense of duress is set up in the amended answer.”
The argument of appellant’s counsel before us was limited to the consideration of the alleged rights of the defendant under the so-called Rent Laws. It is thus evident that the defendant does not now seek to uphold his answer upon the theory that it sets up a common-law defense of duress. There is no doubt that the common-law defense of duress will not avail the defendant, as sufficiently appears from the dissenting opinion of Judge McLaughlin in Levy Leasing Co., Inc., v. Siegel (230 N. Y. 634) in which he discussed the common-law defense of duress, which had been interposed, and held that it was insufficient, a conclusion with which “ all the members of the court agree.” Considering the pleadings under the Rent Laws of 1920, it seems to us only necessary to refer to the following cases which have passed upon the question before us: Paterno Investing Corp. v. Katz (112 Misc. Rep. 242; affd., 193 App. Div. 897); Sylvan Mortgage Co., Inc., v. Stadler (115 Misc. Rep. 311); Seventy-eighth Street & Broadway Co. v. Rosenbaum (111 id. 577).
In affirming Paterno Investing Corp. v. Katz (supra), which held that chapter 136 of the Laws of 1920 does not apply in the case of a lease of premises made before April 1, 1920, when the law became operative, we necessarily approved of the conclusions of the learned Special Term justice that the Rent Laws had no retrospective application. We find no reason for changing our views in that respect. The constitutionality of the Rent Laws was, of course, based upon the legislative finding of an existing emergency, and it may be fairly assumed that the conditions which called upon the Legislature to declare the existence of the emergency prevailed for some time before such legislative declaration. But we nevertheless cannot give retrospective effect to such legislation unless the Legislature in unmistakable terms stated that
The order of the Special Term must be affirmed, with ten dollars costs and disbursements.
Clarke, B. J., Laughlin, Dowling and Merrell, JJ., concur.
Order affiimed, with ten dollars costs and disbursements.