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.

(111 Misc. Rep. 577)

(182 N.Y.S.)

SEVENTY-EIGHTH ST. & BROADWAY CO. v. ROSENBAUM.

(Municipal Court of City of New York, Borough of Manhattan, Fifth District. May 12, 1920.)

1. Evidence ~5 (2) —Fact of shortage of housing facilities judicially known. The courts will take judicial notice of the fact that there is a great shortage of housing facilities in the country.

2. Evidence ~5 (1) —Judicial notice of all matters of general knowledge. Judicial cognizance may be taken of all matters of general knowledge. 3. Landlord and tenant

222-Statute does not give court power to fix rent. Laws 1920, c. 136, § 1, relating to unreasonable and oppressive rents, permits a tenant, as defendant in an action at law for the recovery of rent, to set up the defense that the rent is unjust and unreasonable, but does not give the court the power to fix the rent, or make a new agreement for the parties; the extent of the court's power being to hold, on proper facts being shown, that an agreement is oppressive.

4. Landlord and tenant 231 (1)—Statute relating to unreasonable rents does not limit amount.

Laws 1920, c. 136, § 2, relating to unreasonable rents, does not fix the limit of rent increase within one year at 25 per cent., but is merely a rule of evidence by which, where the rent increase has been less than 25 per cent. within one year, tenant still has the affirmative to prove its oppressiveness, and where there is more than 25 per cent. increase the landlord must show its reasonableness.

5. Landlord and tenant ~~218—Statute permitting tenant to defend action on ground of oppressiveness constitutional.

Laws 1920, c. 136, permitting tenant in action for rent to set up as a defense the oppressiveness of rent. is constitutional, resting upon the police power of the state and upon broad principles of public policy.

6. Constitutional law 87-State may interfere with rights of private property, where safety, health, and morals demand it.

The state may interfere with the rights of private property, where the safety, health, and morals of the community demand it.

7. Constitutional law ~70 (3)—Efficacy and soundness of statute legislative question.

Whether the Legislature could have passed more efficacious laws, and whether it acted on sound economical principles in passing a law, is not for the courts to determine; granting legislative power.

8. Action 2-Relief given against unconscionable contract.

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.

9. Action 25 (4)-Equitable defense interposed in actions at law. Equitable defenses may be interposed in actions at law.

10. Landlord and tenant 218-Statute relating to oppressive leases not retroactive.

Laws 1920, c. 136, permitting tenants in actions for rents to set up defense of unreasonableness of rent, is prospective in its effect, and not retroactive, and cannot be set up as a defense in an action under a lease executed prior to April 1, 1920.

11. Statutes 263-Operate prospectively.

As a general rule, statutes will be construed to operate prospectively only. 12. Statutes

263, 265-Retrospective only, where intention is clear. No retrospective operation can be given to a statute, unless the lan guage employed and the intention manifested is so clear that it will admit For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

of no other construction, and this is particularly true where the statute, if retrospective, would impair the obligation of contracts or interfere with vested rights.

13. Constitutional law 148-Retrospective statute, permitting tenant to set up oppressiveness of rent, would impair obligation of contracts.

If Laws 1920, c. 136, permitting a tenant in an action for rent to set up defense that the rent was unreasonable and oppressive, was construed to be retrospective, so as to apply to leases or contracts entered into prior to April 1, 1920, it would violate constitutional provisions against impairment of obligations of contract.

14. Constitutional law 48-Construction rendering statute valid will be adopted.

Where statute is capable of two constructions, one of which would render it invalid and the other valid, the construction which will uphold its validity must be adopted.

15. Landlord and tenant 222-Statute relating to oppressive rents may be set up by tenants from month to month.

The statutory defense given by Laws 1920, c. 136, may be set up against unreasonable rents, where the tenancies are monthly, or from month to month.

16. Landlord and tenant 218-Statutory defense of unreasonableness of rents may be set up by tenant holding from month to month prior to April 1, 1920.

In monthly tenancies, or tenancies from month to month, though the same rent may have been paid prior to April 1, 1920, the exaction of the rent after such date is not based upon any contract made prior to that date, but upon the renewal of contract from month to month, and such a tenant may set up the defense of oppressiveness and unreasonableness of the rents given by Laws 1920, c. 136.

Action by the Seventy-Eighth Street & Broadway Company against Joseph Rosenbaum. Judgment for plaintiff.

Henry S. Mansfield, of New York City, for plaintiff.
McLaughlin & Stern, of New York City, for defendant.

SPIEGELBERG, J. The plaintiff brings this action to recover the first installment of rent falling due under a written lease for one year and six months. The lease was executed on March 22, 1920. The defendant sets up as a defense that he was in possession of the premises under a lease commencing April 1, 1919, that the lease upon which the action is brought provides for a rental which represents an increase of more than 25 per cent. over the rent as it existed one year prior thereto, and that the rent demanded is unjust, unreasonable, and oppressive, and that the agreement under which the same is sought to be recovered is oppressive. The plaintiff rested its case upon the proof of the agreement and the nonpayment of the rent.

This case involves the validity and construction of chapter 136 of the Laws of 1920, which took effect on April 1, 1920. That law is one of the 12 statutes, to wit, chapters 130 to 139, 209, and 210, which were recently passed by the Legislature to give relief to tenants from the grave situation which has arisen in this and other cities, due to the ever-increasing rents. Chapters 136, 137, and 139 form the keystone of this programme. Chapter 136 deals with actions at law, and

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes