113 Misc. 659 | City of New York Municipal Court | 1920
The plaintiff seeks to recover the first installment of rent under a written lease executed on March 25,1920. The term was for two years beginning October 1, 1920; the rent was payable monthly in advance. The premises demised consisted of a portion of a floor in an apartment house to be used for dwelling purposes only. At the time of making the lease the defendant was in occupancy of the premises under a lease of two years beginning October 1,1918. The rent reserved in the lease of March 25, 1920, represents an increase of ninety-two and three-tenths per cent over the rent in the former lease. The defendant as a defense relies, first, upon chapter 944 of the Laws of 1920, claiming in the language of the statute that the rent is unjust and unreasonable and that the agreement under which the same is sought to be recovered is 'oppressive; and second, that the written lease was signed under duress.
The defendant cannot invoke the aid of chapter 944.
That statute is not retroactive beyond April 1, 1920. Chapter 944 is not a new statute. It is an amendment of chapter 136 of the Laws of 1920 which went into effect on April 1, 1920. Section 1 of chapter 136 permitting the defense of unreasonableness of rent has not been affected by amendment. It is identical with section 1 of chapter 944. That section is, therefore, retroactive beyond the date of its enactment, to wit, September 27, 1920, but only to April 1, 1920. That chapter 136 is prospective only has been decided in 78th Street & Broadway Company v. Rosenbaum, 111 Misc. Rep. 577, and Paterno Investing Corp. v. Katz, 112 id. 242; affd., 193 App. Div. 897. If there
A more difficult and serious question arises in the disposition of the defense of duress. As the courts are flooded with cases where that issue is involved, a more detailed discussion may be proper. The early common law limited duress to duress by imprisonment and duress per minas. In order to come within the latter class, the threats had to be of a nature to involve fear of life or bodily harm. Fear of loss of property was not sufficient. As stated in 4 Cruise Dig. 407: “If a man, through a reasonable or well-founded fear of death, or mayhem, or loss of limb, is forced to execute a deed, he may afterwards avoid it. But Lord Coke says it is otherwise where a deed is executed for fear of battery, which may be very light; or burning his houses, or taking away or destroying his goods, or the like; for these he may have satisfaction, by recovery of damages.”
The early standard for determining the existence of duress was that the threats of violence must be such as to overcome the mind of a courageous man. Subsequently a more rational basis was established so as to hold that duress may consist of any conduct which would overpower the mind of an ordinary firm man. The more advanced rule, however, and the one now
Duress of property was not admitted by the common law. In this country we broke away from that rule. The first courts to hold that duress of property was sufficient to void a contract were those, of South Carolina. Sasportas v. Jennings, 1 Bay, 470, and Collins v. Westbury, 2 id. 211. These authorities were followed in Forshay v. Furgeson, 5 Hill, 154, 158, where Bronson, J., says: ££ There is nothing but the form of a contract in such a case, without the substance. * * * why should the wrong doer derive an advantage from his tortious act1?” That quotation strikes the keynote of the increasing liberality of the application of the defense of duress. Professor Williston in his great work on the Law of Contracts recently published states (Vol. 3, § 1603) that each case is to be considered on its own special circumstances and quotes in the text with approval the following quotation from Joannin v. Ogilvie, 49 Minn. 564: ££ The real and ultimate fact to be determined in every case is whether or not the party really had a choice, whether £ he had his freedom of exercising his will. ’ ’ ’
In discussing the modern doctrine, it is said in 13 C. J. 402: ££ The test is not so much the means by which the party was compelled to execute the contract as it is the state of mind induced by the means employed— the fear which made it impossible for him to exercise his own free will.”
The courts have given enlightened significance to the meaning of duress. The remarks made by Cardozo, J., in Wood v. Duff-Gordon, 222 N. Y. 88, at page 91, are peculiarly applicable: “ The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view to-day.” The distinctions which have been made differentiating duress in the case of a man of ordinary courage or of an aged person or of a child are being swept aWay. The condition of mind produced by threats which render a person incapable of exercising his free will is and should be the only inquiry.
Applying this test to the facts in the case under consideration it appears that the plaintiff took title to the building containing the defendant’s apartment on February 20, 1920. On March 10,1920, the defendant and other tenants were notified that the plaintiff required possession of their respective apartments on September 30, 1920, the date of the expiration of the then existing leases. On March 12, 1920, the defendant went to the office of the agents of the plaintiff who tendered him a lease of the apartment for a term of two years from October 1, 1920, at a rental of ninety-two and
I am of the opinion that all the requirements permitting the modern doctrine of duress to be invoked are present in this case. In the case of 78th Street & Broadway Co. v. Rosenbaum, 111 Misc. Rep. 577, in discussing the constitutionality of chapter 136 of the Laws of 1920,1 had occasion to discuss some of the phases of the question to be determined herein (see pp. 589 et seq.) I said on page 591: “ It is therefore, apparent that the doctrine is firmly imbedded in our jurisprudence that where one takes an undue advantage of another’s situation and circumstances and thereby obtains an unfair and unconscionable contract the court may grant relief. This condition applies to the making of leases at the present time. Landlords and tenants cannot contract on an equal basis. The tenant is compelled by sheer necessity of having a place to dwell in to agree to any conditions that may be imposed by the landlord.”
That conclusion is supported by numerous authorities of text writers and cases which are cited and quoted in that case. I deem it, therefore, unnecessary to repeat them but base strong reliance upon them in support of this decision.
In Rourke v. Storey, 4 E. D. Smith, 54, an employee was discharged in Panama. He was compelled to give a receipt in full on the payment of a sum less than the amount actually due for his wages. At the time he had no other means aside from his wages to procure his passage home. The court held that the plaintiff was entitled to recover the balance due him as the receipt was obtained without his assent and, therefore, amounted to duress.
In Faulkner v. Faulkner, 162 App. Div. 848, the court held that circumstances of extreme necessity and distress, although not accompanied by any direct restraint or duress, may justify the setting aside of a deed.
In Kilpatrick v. Germania Life Insurance Co., 183
In Harmony v. Bingham, 12 N. Y. 99, the court, at page 116, says: 1 ‘ When a party is compelled, by duress of his person or goods, to pay money for which he is not liable, it is not voluntary but compulsory.” See, also, Van Dyke v. Wood, 60 App. Div. 208, cited in the Rosenbaum Case, supra, and Aronoff v. Levine, 105 Misc. Rep. 668, where many of the authorities are reviewed by Mr. Justice Cropsey.
Of course, no state of facts like the present one due to the acute housing shortage can be shown to which the principle of duress has been made applicable. But a novel situation has never been the ground for denying warranted relief. Each case must be judged on its merits. Very appropriate language is used in Barnett Oil & Gas Co. v. New Martinsville Oil Co., 254 Fed. Repr. 481, where after discussing the more liberal views held by the American courts on the applicability of the defense of duress the court says at pages 486 and 487: “ The result to my mind leads to the very familiar conclusion that such application must, in the final analysis, depend upon the facts of such ease, and that the chancellor or the judge must be controlled by a sound discretion in each; that no hard and fast rule can be established; the effort must be to see the right and justice in the case and do it.”
The claim is also made that inasmuch as a contract obtained under duress is not void but only voidable, the defendant has ratified the agreement. This is not the case. The decision as to ratification or repudiation must be made after the removal of the duress (Hun
As very many cases on leases made prior to April 1,1920, and to take effect after that date involving the defense of duress are now before the courts it may be well to make some additional suggestions affecting the defense of duress against the enforcement of such leases. The fact that the rent reserved in the lease is unreasonable and unconscionable must be pleaded in the answer and must be established at the trial by the defendant. He cannot invoke the aid of chapters 136 or 944 of the Laws of 1920 and thereby cast the burden of proving the reasonableness of the rent upon the landlord. If the rent fixed in the lease was arrived at after negotiations between the parties with the free assent of the tenant the defense is not maintainable although the rent may be in excess of what may be deemed reasonable. Where the tenant has paid one or more installments of the rent after October 1,1920,
Entertaining the views herein expressed I am compelled to hold that the instrument sued upon is void and unenforceable. The plaintiff is undoubtedly entitled to a higher rent than the one reserved in the prior lease, and the defendant so admits. The court, however, has no right to make a new contract for the parties. Its power is limited to decide whether or not the contract is tainted with duress.' Unless the parties can agree upon the amount to be paid by the defendant, the plaintiff is relegated to an action for the recovery ,of the reasonable rental value.
There is judgment for the defendant.
Judgment for defendant.