194 A.D. 530 | N.Y. App. Div. | 1920
The appellant predicates his claim for a reversal on the construction of chapter 942 of the Laws of 1920, which took effect on the twenty-seventh day of September; and the-respondent claims that a proper construction of the statute requires an affirmance, but if not, then the statute, in so far as it purports to deprive the landlord of the right to the dispossess warrant, is unconstitutional. The statute was enacted at an extraordinary session of the Legislature duly convened by the Governor on the 20th day of September, 1920.
“ 1-a. A public emergency existing, no proceeding as prescribed in subdivision one of this section shall be maintainable to recover the possession of real property in a city of a population of one million or more or in a city in a county adjoining such a city, occupied for dwelling purposes, except a proceeding to recover such possession upon the ground that the person is holding over and is objectionable, in which case the landlord shall establish to the satisfaction of the court, that the person holding over is objectionable; or a proceeding where the owner of record of the building, being a natural person, seeks in good faith to recover possession of the same or a room or rooms therein for the immediate and personal occupancy by himself and his family as a dwelling; or a proceeding where the petitioner shows to the satisfaction of the court that he desires in good faith to recover premises for the purpose of demolishing the same with the intention of constructing a new. building, plans for which new building shall have been duly filed and approved by the proper authority; or a proceeding to recover premises constituting a part of a building and land which has been in good faith sold to a corporation formed under a co-operative ownership plan whereof the entire stock shall be held by the stockholders in proportion to the number of rooms occupied or to be occupied by them in such building and all apartments or flats therein have been leased to stockholders of such corporation for their own personal, exclusive and permanent occupancy to begin immediately ‘upon the termination of any tenancy of the apartments or flats leased by them existing on the date when this subdivision takes effect.
“In a pending proceeding for the recovery of real property in such a city on the ground that the occupant holds over after the .expiration of his term, a warrant shall not be issued unless the petitioner establishes to the satisfaction of the court that the proceeding is one mentioned in the exceptions enumerated in this subdivision.
The joint legislative committee which also recommended the enactment of this statute appended thereto an explanatory note stating the object of the exceptions, and stating generally as follows: “ This bill will do away with the anxiety of the many people in New York who are now holding their premises under short stays or have been served with notices to move on October 1st. The notices served upon people that they will be required to vacate on October 1st will be wholly ineffectual after the passage of this bill. In hold-over proceedings already brought, where a stay has been granted, the court cannot issue a warrant to put the tenant out unless it is for one of the causes mentioned above.”
Concededly the dispossess proceeding did not fall within any of the exceptions noted in the statute. Counsel for the respondent contends that the proceeding was terminated by the final order of the court directing that a warrant to dispossess the tenant should issue and that, therefore, it was not a pending proceeding when the statute was enacted; and they also claim that if the statute requires a construction embracing a proceeding in which such a final order had been granted, then it is in that respect unconstitutional and void and that the relator was in either event entitled to the writ.
Neither of the two points presented has been authoritatively decided. I am of the opinion that it is perfectly clear that the Legislature intended that after the enactment of the statute no warrants should be issued in a dispossess proceeding not excepted therefrom, until the 1st day of November, 1922, at which time it is evident the Legislature expected the public emergency would terminate. It will be seen that the Legislature withdrew the summary remedy theretofore given for the recovery of the possession of any real property occupied for dwelling purposes with the exceptions which are not material to this appeal. Having forbidden the maintenance of such a proceeding, it also expressly forbade the issuance of a dispossess warrant in any pending proceeding for the recovery of real property on the ground that the occupant was holding
One of the objects of the Legislature would be frustrated if any further dispossess warrants were issued. If there were any doubt arising on the phraseology of the statute with respect to the intent of the Legislature in this regard, it would be removed by the note of the joint legislative committee which accompanied the draft of the bill and referred to stays granted under section 3 of chapter 137 of the Laws of 1920, which authorized the granting of a stay of the issuance of a warrant under the final order for a period deemed proper, but not more than twelve months upon conditions specified in the statute. (Caminetti v. United States, 242 U. S. 470, 490; United States v. St. Paul, M. & M. R. Co., 247 id. 310, 318; Famborille v. Atlantic, Gulf & Pacific Co., 155 App. Div. 833, 840; affd., 213 N. Y. 666.)
The opinion of the learned court at Special Term (113 Misc. Rep. 253) shows that the writ was granted on the theory that the summary proceeding was not pending, and he cited as authority for that ruling Porter v. Kingsbury (77 N. Y. 164) where it was held that a plea of the pendency of a former action involving the same issues, which is authorized to avoid vexatious litigation, was not sustained .by proof that the complaint in a former action by the plaintiff against the .defendant had been dismissed for the failure to serve a notice required to be served before the action could be maintained, and that the judgment had become final owing to the failure of the plaintiff to appeal therefrom, but that the costs awarded thereby had not been paid. The plaintiff in that case, recognizing that his cause of action was not complete when he brought the first action, served the requisite notice and brought the second action in which this plea was interposed. The court in overruling the plea of the pendency of the former action held that if the judgment in the former action was a bar, it should have been pleaded as such, but that the action was terminated by the judgment and was “ no longer pending within the meaning of this plea.”
In Wegman v. Childs (41 N. Y. 159), however, the court held that an action prosecuted to final judgment which remained
The jurisdiction of the Municipal Court is statutory (N. Y. City Mun. Ct. Code [Laws of 1915, chap. 279], § 6, as amd.) and not preserved by the Constitution, and it is, therefore, competent for the Legislature to withdraw its jurisdiction with respect to summary proceedings or to modify it at will.
At the time the summary proceeding in question was instituted the Legislature had, by said chapter 137 of the Laws of 1920, which took effect on the 1st day of April, 1920, authorized a stay of the issuance of the dispossess warrant in certain cases. That was the status of the jurisdiction of that court when the relator by petitioning it instituted the summary proceeding; and pursuant to the statute, the court had stayed the warrant until October first, before the Legislature by said chapter 942 attempted further to suspend the issuance of the warrant until November 1, 1922. As has been seen, chapter 942, enacted at the extraordinary session, amended section 2231 of the Code of Civil Procedure by adding subdivision 1-a, relating to cities having a population of 1,000,000 or more and to cities in a county adjoining, forbidding, on the ground of a public emergency, the maintainance of summary proceedings under subdivision 1 of the section excepting with respect to objectionable tenants holding over and where the owner in
It will be borne in mind that the relator in thus invoking the aid of the Municipal Court took the risk of the issuance of a warrant being stayed for a year, but that authority was withdrawn as I have stated. It is well settled that vested property rights under a final judgment or determination in the nature of a judgment cannot be affected by subsequent legislation. (Gilman v. Tucker, 128 N. Y. 190; People ex rel.
By thus withdrawing from the court which had granted the stay until October first authority to continue it further, the tenant’s rights under the stay granted by the court terminated on October first, and he had no further right unless the attempted legislative stay was valid, for the only other authority for a stay is in the provisions of chapter 210 of the Laws of 1920 (amdg. N. Y. City Mun. Ct. Code [Laws of 1915, chap. 279], § 6, subd. 3), authorizing the Municipal Court, among other things, upon the rendering of a final order in summary proceedings, to grant a stay of the execution of the warrant for not more than thirty days, but that was not invoked, and if it had been it would have been inapplicable since the authority thereby conferred relates only to an original stay. I am of opinion, therefore, that the landlord, prior to the enactment of chapter 942, had acquired a vested right to have a warrant issued under a final order on October first and that this was a property right of which he could not be deprived by the act of the Legislature. (Gilman v. Tucker, supra; Livingston v. Livingston, supra.) It is claimed, however, that the statute may be sustained on the theory that it is merely a temporary suspension of the right of the landlord under the final order and that it was authorized by the public emergency. Appellant relies in support of this contention upon Edmonson v. Ferguson (11 Mo. 344) where a State statute suspending actions and proceedings against volunteers while absent from the State during the Mexican War was sustained as valid, and on Breitenbach v. Bush (44 Penn. St. 313) sustaining the validity of a State statute staying civil process against any person in the service of the State or of the United States during the War of the Rebellion for the term of
If chapter 947 of the Laws of 1920 (adding to Code Civ. Proc. § 1531a), withdrawing the remedy by ejectment, be held to be unconstitutional and void, it would seem to follow that it was incompetent for the Legislature by this statutory stay to deprive the owner of the possession of his property and secure possession to the tenant, whose term had expired, for the period of the statutory stay. However, since the rent cases were argued before this court and we had determined how we would decide them and our opinions had been formulated, our attention has been drawn to a decision of the Appellate Division in the Second Department in People ex rel.
Clabke, P. J., Dowling and Gbeenbaum, JJ., concur; Mebbell, J., concurs in result.
Order reversed and motion denied, without costs.