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and under the circumstances the state is liable to respond in damages for the injuries sustained. There is also no doubt but what the claimants have greatly exaggerated their claims, and not only filed claims for much more damage than they actually sustained, but in their testimony have attempted to greatly enhance and enlarge upon the amount of damages which they claim they actually sustained, and therefore it becomes somewhat difficult for the court to get at the actual amount of the damage sustained by each of the claimants.

I have carefully considered all of the testimony given upon the trials, and find that the damage sustained by the claimant Pronath is $320, and an award of that amount is made to him; the damage sustained by the claimant Hood is $475, and an award of that amount to them is made; and the damage sustained by the claimant Thaxter is $200, and an award of that amount is made to him; and we direct that judgments be entered in the amounts of the above-named awards in favor of the respective claimants.

ACKERSON, P. J., concurs,

FISHER V. RABINOWITZ.

ALBERTI v. FERRADO. (Municipal Court of City of New York, Borough of Manhattan, Sixth District.

May 26, 1920.) 1. Landlord and tenant w303 (1)-Amendment to summary dispossess stat(182 N.Y.S.) of termination, notifying tenant rent has been increased, and asking him to move if he does not desire to pay, or that summary proceedings will be commenced if the increased rent is not paid, not being compliance with statute.

ute permits alternative allegations.

Under Laws 1920, c. 139, amending, by adding a new subdivision, Code Civ. Proc. $ 2231, relative to summary dispossess proceedings, petitions of landlord, alleging rent of demised premises had not been increased more than 25 per cent. over rent as it existed one year prior to time of pres. entation of petitions, following language of chapter 139, held sufficient, though not also alleging rent was no greater than amount paid by tenants for month preceding alleged default for which proceedings were brought, an alternative allegation, in view of the word “or” in chapter 139; such construction not depriving tenant of any right, privilege, or

defense given him by chapter 136. 2. Landlord and tenant Eww116 (5) -Without 30 days' notice to quit monthly

tenant is not holding over.

Where monthly tenant never agreed to increased rental, so as to make new hiring under different terms, but retained possession without paying or surrendering possession on demand, his possession must be deemed that of a holdover under original terms of lease; conventional relation of landlord and tenant still existing, and, not having received from landlord 30 days' notice of termination in form required by Laws 1920, c. 209,

ne is not holding over after expiration of his term. 3. Landlord and tenant 116 (5) - Monthly tenancy not terminable by give

ing notice of increase in rent.

Monthly tenant has right to rely on law fixing his rights and liabilities for remaining in possession after expiration of his month, and only way his tenancy can be terminated and landlord regain possession, in absence of agreement to pay more rent, is a default in payment for month he holds over of same amount of rent for month preceding his holding over, or

compliance by landlord with Laws 1920, c. 209, by giving 30 days' notice Om For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Summary dispossess proceedings by Minnie Fisher, landlord, against John Rabinowitz, tenant, and against other tenants, and by Conchetti Alberti, landlord,' against John Ferrado, tenant, and against other tenants. Judgments for tenants, and proceedings dismissed. In the Fisher Case:

Rippe & Michael, of New York City, for landlord.

S. A. Fried, of New York City, for tenants.
In the Alberti Case:

J. A. Boccia, of New York City, for landlord.
Samuel J. Albert, of New York City for tenants.

MARKS, J. The facts in these cases are substantially the same as in hundreds of others presented in this court during this term, where landlords, more than 30 days prior to May 1st, notified their tenants that their rents after May 1st would be increased, in some cases more and in some less than 25 per cent. of the amounts paid during the preceding year or preceding month. The tenants are monthly tenants, and have been such for many months prior to May; their terms commencing on the 1st of the month.

In the Fisher Case, the tenant prior to May 1st paid $23 a month, and more than 30 days prior to May 1st the landlord notified him in writing that on May 1st his rent would be increased to $28; and in the Alberti Case, the landlord in writing notified the tenant that his rent would be increased from $16 to $20 a month, and if the tenant did not pay the increased rent he would be dispossessed. The tenants never agreed to pay the increased rental, and failed to comply with the demand for payment of the increased rent made before the proceeding was instituted. The claim is made in behalf of the landlords that by remaining in possession after notice that their rent from May 1st would be increased, and a demand therefor, they may be dispossessed as for a holding over for nonpayment of the increased rent. In the petitions it is alleged:

"That the rent of the demised premises has not been increased more than 25 per cent. over the rent as it existed one year prior to the time of the presentation of the petition"—following the language of chapter 139 of the Laws of 1920.

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The tenant claims that the proceeding should be dismissed, for the reason that the act also provides that the petition should also state, in words or substance, that the rent is no greater than the amount paid by the tenant for the month preceding the alleged default for which the proceeding is brought, and, as this allegation is not set out, the proceeding cannot be maintained.

While chapter 139 provides that the petitioner must allege, as well as prove, "that the rent of the premises * *

is no greater than

*

the amount paid by the tenant for the month preceding the default

or has not been increased more than 25 per centum over the rent as it existed one year prior to the time of the presentation of the petition," the conjunction "or," in this place in the act, is, in my opinion, used in its proper and ordinary sense, and marks an alternative, and does not require both facts or conclusions to be stated.

It is in the disjunctive, and plain, and there is nothing ambiguous or doubtful about what is meant or intended; nor is there any mistake, so as to justify changing "or" to "and." The purpose and sense of the act, as disclosed by a reading of it in its entirety, is not rendered doubtful by reading “or," or made clearer by substituting "and" for “or.” It, the "or,” refers to either one of two required allegations that must be alleged in the petition and proved, that the rent in default was not increased or is not greater than the amount paid the month before, or the alternative, has not been increased more than 25 per cent. of what it was a year before, and this construction of "or," or its literal meaning as "or," and not "and," is not inconsistent with the intent of the act.

The Legislature determined, it seems to me, in plain language by chapter 139 that one of two things must exist to maintain the proceeding. The purpose of that chapter recognizes the existence of, and does not repeal, section 2231 of the Code, providing for the various grounds on which summary proceedings may be brought, and only amends that section of the Code by adding a new subdivision, requiring one of two additional facts to be stated and proved, where the property is in a city of the first class or adjoining, in addition to the other requirements of section 2231; and in my opinion the language of that chapter should not be altered by substituting "and" for "or," when such a change is not essential to carry out the obvious purpose of the act-section 2231, as amended by chapter 139 of the Laws of 1920.

The various subdivisions of section 2231 contain many grounds in the alternative, under or for which summary proceedings to remove a tenant may be maintained, and it cannot be successfully urged that in a proceeding under one of those many subdivisions, containing alternatives, all the grounds separated by the conjunction "or" must exist to entitle the proceeding to be brought. For instance, take subdivision 2, providing that, in case of a default in the payment of rent, a tenant may be removed where he holds over without permission after such default, and a demand has been made for the rent or at least three days' notice in writing requiring the payment of the rent or the possession of the premises has been served. Here we have an alternative no weaker or stronger than in chapter 139, and yet both steps are not required. Either one is sufficient; and so throughout the other subdivisions.

It might very well be urged that the allegation and proof required under chapter 139 with reference to the fact that the rent is no greater than the month preceding the default for which the proceeding is brought had reference, and was intended by the Legislature to apply, to monthly tenancies by express agreement entered into after April 1, (182 N.Y.S.) 1920, or created by operation of law by holding over, after April 1, 1920, and the other provision, that it has not been increased more than 25 per cent. over the year previous, relates to yearly tenants created by agreement after April 1st, or tenancies for a year also created by operation of law by holding over after April 1st. The act refers to the recovery of real property held under a lease or tenancy for a year, as well as for less than a year.

Such a construction, whether the rent demanded in the petition is an increase of not more than 25 per cent. over the rent of the year preceding the time of the presentation of the petition, and that allegation is made, or it is stated in the alternative, as the act provides, that it is no greater than the amount paid by the tenant for the month preceding, does not deprive the tenant of any right or privilege or defense given him by chapter 136 of the Laws of 1920. He may interpose the defense in either case, where the tenancy was created after April 1, 1920, or renewed or continued by operation of law after that date, that the rent reserved is unjust, unreasonable, and the agreement oppressive; and this he may do, irrespective of the fact as to whether it should appear that the rent has been increased 1 per cent. or 25 per cent.

[1] It becomes a question of fact whether the increase, large or small, is unjust and unreasonable, and the agreement oppressive; the burden of proof shifting according to the amount of the increase. Therefore I conclude that the proceeding in the form of the petition in this respect was properly brought, and the motion to dismiss upon that ground is denied.

The petition alleges, in the stereotyped form generally used in this court, that the petitioner and tenant entered into an agreement by the terms of which the tenant hired the premises, "and that the said tenant in and by said agreement undertook and promised to pay to the said landlord the sum of $28 per month, payable monthly in advance on the 1st day of each month, for the use and occupation of said premises; that said tenant entered into the possession of said premises and still occupies the same.” Then follows the allegation, above referred to, that the rent has not been increased more than 25 per cent. Further, the petition states that on the 1st day of May, 1920, there was due to the said landlord under and by virtue of the terms of said agreement the sum of $28 for one month's rent from May 1st to June 1st, which has been personally demanded from the tenant since it became due, and has not been paid, and that the tenant holds over and continues in possession of the premises without the permission of the landlord after such default. The petition in the Alberti Case is in the same form except as to amount and premises.

[2] In the first place, subdivision 2 of section 2231 provides that a tenant may be removed where he holds over without permission of the landlord after a default in the payment of rent, pursuant to the agreement under which the demised premises are held, and a demand of the rent has been made. The demand for the rent in this case is not the amount pursuant to any agreement under which the tenant holds the premises. In view of the fact that by operation of law a tenant, remaining in possession of premises, becomes from month to month a monthly tenant, for each month that he holds over subsequent to the original hiring, upon the same terms, and that the tenant never agreed to the increased rental, so as to make a new hiring under different terms, his possession must be deemed that of a holdover under the original terms, the conventional relation still existing; and, not having received the 30 days' notice in the form required by chapter 209 of the Laws of 1920, he is not holding over after the expiration of his term.

[3] A monthly tenant has the right to rely upon the law fixing his rights and liabilities for remaining in possession after his month expires, and the only way his tenancy can be terminated and the landlord regain possession, in the absence of an agreement to pay more rent, is a default in the payment, for the month he holds over, of the same amount of rent paid in the month preceding his holding over, or a compliance with chapter 209 of the Laws of 1920. Notifying the tenant that the rent has been increased, and asking him to move if he does not desire to pay the rent, or that summary proceedings will be commenced if the increased rent is not paid, is not a compliance with the statute.

Chapter 209, providing, in substance, that no monthly tenant in the city of New York shall be removed for holding over his term unless, 30 days before the expiration thereof, the landlord serves upon the tenant a notice in writing that the landlord elects to terminate the tenancy, and that, unless the tenant removes from the premises on the day his term expires, the landlord will, commence summary proceedings under the statute to remove him, imposes certain protective duties and restrictions, which must be observed by the landlord. Extended as the time has been from 5 days to 20, and by the latest law to 30 days, it shows an intent to secure to the tenant at least a breathing spell after the shock of the notice to vacate, and gives him time to secure other apartments. The fact that 30 days' notice of an increase is given cannot change the principle. The act cannot be circumvented by any such notice of increase, but must be strictly followed.

This proceeding does not come within section 2231 of the Code and the special act (chapter 209, Laws of 1920) applicable to the city of New York, as it is not one where the tenant's right to the continued possession of the premises has been terminated, either by the expiration of his term, by the contract of letting, or by force of any statute, or by the giving of the statutory 30 days' notice.

The facts are contrary to the petition. There was no agreement of hiring at $28 a month in the Fisher Case, or $20 in the Alberti Case. On the contrary, the evidence shows that the tenants did not originally hire the premises on or from May 1st, never agreed to pay the sums now claimed as rent for the premises that they had occupied for months before at rentals of $23 and $16, respectively, and that by operation of law they were tenants holding over at their former rentals. Miller v. Lowe, 86 N. Y. Supp. 16.

Judgment for the tenants, and proceedings dismissed.

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