113 Misc. 607 | City of New York Municipal Court | 1920
This is a motion for an order permitting the plaintiff herein to withdraw from the clerk of this court, and directing the clerk to pay to the plaintiff, the sum of $125 deposited with the clerk by the defendant under the provisions of section 6 of chapter 944 of the Laws of 1920.
No written complaint was served with the summons. The nature and substance of the cause of action were
But we will go still further. Even if the defendant denied none of the allegations of the complaint, but merely set up the defense of unreasonableness of the rent and oppressiveness of the agreement, it does not necessarily follow that the plaintiff would be entitled ■to judgment even in the amount deposited in court by the defendant. There is nothing in the pleadings to show that the amount so deposited was not greater, than the rent as it existed one year prior to the time of the agreement under which the rent' is sought to be recovered, nor is there anything in the statute to bar the defendant from showing, and the jury from finding,
Section 3 of said chapter 944, Laws of 1920, provides a method by which the defendant may presumptively establish that the agreement is unjust, unreasonable and oppressive. But such method of proof is not exclusive and the defendant may by other proof establish his affirmative defense and even show that the rent as it existed one year prior to the making of the agreement was greater than was just and reasonable.
Even though the rent demanded by the plaintiff is no greater than the amount paid as rent during the preceding month or than the amount reserved as the monthly rent in the agreement under which he obtained possession of the premises, still the defense that the amount demanded is unreasonable and the agreement oppressive is available to the defendant. Yet under the provisions of section 6 of chapter 944, regardless of whether the plaintiff is demanding an ■ increase or merely the old rent, the defendant at the time of answering must deposit with the clerk such sum as equals the amount paid as rent during the preceding month or such as is reserved as the monthly rent in the agreement under which he obtained possession of the premises, upon penalty of having his entire defense stricken out by the court and this is so regardless of whether he admits that he owes the plaintiff any such amount or not.
In these circumstances it is absurd to say that the defendant, in paying this money to the clerk, concedes that this amount of rent, at least, is due, or that the only issue which arises after the deposit of this amount is as to whether the plaintiff is entitled to an increased amount. No such inference arises except where the payment into court is voluntary or accompanied by
But an entirely different rule applies when the payment "into court is not voluntary but is made, either by the order of the court or by statutory requirement, as a condition precedent to the offering of a defense. In such a ease the money is paid into court as security, only, for the payment of any judgment the plaintiff may recover. If the plaintiff does not prevail the .money is paid back to the defendant. Where the plaintiff has recovered judgment by default and the defendant moves to open the default, the court does sometimes grant the motion on condition that the defendant pay into court as security the amount of the judgment recovered by default. But assuming that the defense set up by the defendant goes to the entire cause of action, what court would think of imposing as a condition of opening the default that the amount of the default judgment be paid over absolutely to the plaintiff in advance of trial?
In the same manner the defendant is required by this statute to make the deposit as a condition precedent to his being pérmitted to offer at all the defense of unreasonableness and oppressiveness. Hence his action in making such deposit is not voluntary and involves no admission whatever that the amount deposited is due the plaintiff.
I am not unmindful that some hardship may result to landlords if the deposit is retained by the clerk until judgment is rendered, but just as much hardship results from the fact that the statute requires the tenant to pay into court only one month’s rent, although it may be six months before the action can be brought to trial. The legislature apparently did not foresee that the flood of actions invited by the new laws would make speedy disposition of cases impossible. To avoid the difficulties with which we are now confronted extensive revision of the existing rent laws will be necessary. But it would be unfortunate indeed if the courts were to rule that under these laws the plaintiff in a rent action is entitled to receive any portion of the rent sued for and not admitted by the defendant until the amount to which he is entitled has been adjudicated. The motion must be denied.
Motion denied.