conditions are abnormally impaired and profiteering landlords engaged in the pernicious practice of exacting oppressive rents under threat of removal.

It is asserted that, if the tenant's rule of construction is upheld, the petitioner must allege and prove both elements, it would prevent a landlord from increasing a rent charge at all. The answer to that is that it does not do any such thing. At most it only prohibits, by temporary suspension, a landlord's right to remove a tenant by summary proceedings when his actions by rent increases against short term tenants are suggestive of a profiteering policy of an oppressive nature. A landlord's general rights are not impaired. He has access to an action for rent, and his remedy to remove by holdover proceedings (section 2231, subd. 1, Code Civ. Proc.) or by ejectment (sections '1496 to 1531, Code Civ. Proc.) are still available. The legislation was enacted to meet an emergency that was of serious moment. Its object was to cure mischief and place additional safeguards about the public welfare. Legislation of this kind must not be confused with such as take away every remedy. Parmenter v. State, 135 N. Y. 154, 166, 31 N. E. 1035. The welfare of reasonable landlords cannot be seriously affected, if at all. Those who have not been guilty of profiteering practices through oppressive rent increases should not be seriously concerned. With satisfied tenants, occasion for summary removal will rarely arise. On the contrary, if petitioner's construction be upheld, and a landlord permitted to resort to dispossess a tenant by summary proceedings for nonpayment of rent, on the sole allegation and proof that there was no increase over the amount paid the previous month, regardless of whether increases exacted during the preceding 10 months amounted to over 25 per centum, then the entire policy and intent of the emergency legislation to suppress or curb oppressive profiteering will be nullified. It would keep that class of landlords fortified, and continue to invite others to their practice, through the very means to which they have previously resortedthreat of summary removal.

[5, 6] Counsel for petitioner has made a point that the opinions expressed by some of the legislators who were active in drafting this legislation are in support of his rule of construction. Opinions of such persons expressed in debate cannot be considered in ascertaining the meaning and intent of statutes. Woollcott v. Shubert, 217 N. Y. 212, 221, 111 N. E. 829. The statute has a laudatory, humane objective. While it may create some hardships, the good secured and the mischief prevented is of more far-reaching results. If the intent and force of this statute as construed is found to be impracticable, harsh, and unjust, courts have no alternative but to uphold and enforce it, leaving it to the Legislature to remedy, especially when it is for the general good and in force for a limited time only. Rosenplaenter v. Roessle, 54 N. Y. 262.

[7] On this conclusion it follows that the statute requires as a condition precedent to the maintenance of these proceedings that he allege and prove both the elements described, to wit:

(183 N.Y.S.)

"That the rent was not increased over that paid the month before, and does not exceed twenty-five per centum of what it was a year before."

The petitioner has pleaded both elements, but his proof establishes only one. As a consequence the proceedings must be dismissed. The result will be the same in the other six proceedings.

(112 Misc. Rep. 86)

SHANIK v. ECKHARDT.

(Supreme Court, Appellate Term, Second Department. May Term, 1920.) 1. Landlord and tenant ~~308 (1) -Presumption as to unreasonableness of increase in rent overcome by landlord's undisputed testimony.

In summary proceedings the tenant will be presumed to have pleaded as a defense under Laws 1920, c. 132, that the increased rent was unjust, unreasonable, and oppressive, but the presumption under the statute that the rent was excessive was overcome where tenant introduced no evidence as to excessiveness and where landlord gave undisputed testimony as to conditions making the increase reasonable.

2. Statutes 225-Laws in pari materia should be construed together. Laws 1920, cc. 130–139, relating to the subject of landlord and tenant, being in pari materia, should be construed together.

3. Statutes 197-"And" sometimes substituted for "or."

In the construction of statutes, the word "and" is sometimes substituted for the word "or."

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, And.]

4. Landlord and tenant ~308 (1) —Statute as to pleading and proof in summary proceedings construed so as not to require the word "or" to be read as "and."

The word "or," in Laws 1920, c. 139, requiring landlord in summary proceedings to recover possession of premises used for dwelling purposes in city of the first class to plead and prove that the rent is no greater than the amount for the month preceding the default, "or" has not been increased more than 25 per cent. during the preceding year, will not be read as "and," in view of chapters 132, 135, chapter 136, § 2, chapters 137-139, and Code Civ. Proc. § 1504, and the unambiguous language of the statute itself, and only one of the alternatives need be pleaded and proved.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Or.]

Appeal from Municipal Court, Borough of Brooklyn, Seventh District.

Summary proceeding by Joseph Shanik against Edward Eckhardt. From an order dismissing the petition, the landlord appeals. Reversed, and new trial granted.

Argued May term, 1920, before CLARK; KELBY, and CROPSEY, JJ.

Richards, Smyth & Conway, of Brooklyn (Albert Conway, of Brooklyn, of counsel), for appellant.

Edward Eckhardt, pro se.

Abraham J. Halprut, of New York City, amicus curiæ.

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

CLARK, J. Appeal from a final order in summary proceedings, dismissing the landlord's petition, in which the possession of demised premises was demanded for nonpayment of rent. The petition, verified April 17, 1920, and filed April 19, 1920, alleges that on or about February 15, 1920, the landlord and tenant entered into an agreement, by the terms of which the tenant hired the premises for one month and one month only, and promised to pay the landlord the sum of $28 a month, payable monthly in advance, on the 15th day of each month thereafter, during the occupancy, for the use and occupation thereof, and thereupon entered upon the occupation of said premises. The petition further contains the following clause:

"The petitioner further alleges that the rent of the premises described herein is no greater than the amount paid by the tenant for the month preceding the default for which this proceeding is brought, and has not been increased more than 25 per centum over the rent as it existed one year prior to the time of the commencement of this proceeding."

During the trial the landlord was allowed to amend his petition by substituting for the word "and" (following the words, "is brought") the word "or." Continuing, the petition alleges that, on April 15, 1920, there was due to the landlord under and by virtue of said agreement the sum of $28 for one month's rent of the premises from April 15, 1920, to May 14, 1920, that the rent had been demanded from the tenant personally since it became due, that the tenant had made default in the payment thereof, and that he held over without the permission of the landlord after such default. April 19, 1920, there was issued a precept for nonpayment of rent, returnable April 23d. Indorsed upon the petition, over the signature or initials of one of the justices of the Municipal Court, appear these words:

"The tenant answers:

Also the following:

General denial. Excessive rent. April 23, 1920."

"Word 'and' amended to read 'or' in line 21 of petition. April 28/20."

. The proceeding was tried April 28th, and on May 5th judgment by final order was rendered, dismissing the petition.

Upon the trial the landlord alone was sworn. He testified that the rent of the premises one year ago was $19 a month; that the rent demanded is $28 per month (an increase of about 47 per cent.); that the tenant had paid $28 for the last two months, but refused to pay $28 for the third month. After proving the above essential facts, which were not controverted, the landlord testified to the cost of the property, to mortgages thereon, to the amount of janitor's wages, taxes, fire insurance premium, liability insurance premium, to the cost of repairs, coal, and electric light, to fees paid for collecting rents, and as to depreciation. The above items, with others here omitted, are claimed by the landlord to show annual charges against the property (in which is included 10 per cent. on the value of the landlord's equity) of $7,545, as against present rentals of $6,646, leaving an apparent deficit of $899. No attempt was made by the tenant to con

(183 N.Y.S.)

tradict or to put in issue any of the above facts to which the landlord had testified. The trial concluded as follows:

"The Court (to the tenant): Have you anything to say?

"The Tenant: I have nothing to say.

"The Court: He admits the rent a year ago was $19. That is all you have to say, isn't it?

"The Tenant: Yes, sir.

"The Court: Do you know anything about the rents in the neighborhood? "The Tenant: No, sir.

"The Court:

Why do you claim the rent is excessive?

"The Tenant: I think it is against the law; that is all.

"The Court: Your only position is because the law says, as you think, that you will not have to pay more than 25 per cent. more?

"The Tenant: I don't know.

"The Court: I will reserve decision.

"Mr. Richards: If your honor is going to raise that other question, may I ask that the petition be amended to allege the word 'or,' instead of 'and'; not more than 25 per cent. or not more than was paid last month.

"(Amendment allowed.)"

[1] Although the tenant will be presumed to have pleaded in effect, as a defense under chapter 132 of the Laws of 1920, that the increased. rent was unjust, unreasonable, and oppressive, he gave no testimony in support of such defense, but stood upon the legal presumption, raised by chapter 136 of the Laws of 1920, that the rent was excessive, because it had been increased more than 25 per cent. over the rent of one year ago. The undisputed testimony of the landlord rebutted this presumption, and the defense failed.

This appeal presents an issue of law, involving primarily the construction of chapter 139, Laws of 1920, subdivision 2a, which reads in part as follows:

"No [summary] proceeding * possession of real property,

shall be maintainable to recover the unless the petitioner alleges in the petition and proves that the rent of the premises described in the petition is no greater than the amount paid by the tenant for the month preceding the default for which the proceeding is brought or has not been increased more than twenty-five per centum over the rent as it existed one year prior to the time of the presentation of the petition."

[2] This chapter (139) relates only to summary proceedings based on the nonpayment of rent. The controversy is still further narrowed to the question whether the word "or," italicized above, must be read “and,” At the late session of the Legislature of the state of New York there were passed ten separate laws (Laws 1920, cc. 130–139, both inclusive), relating to the subject of landlord and tenant. These laws are all in pari materia; they all took effect the same day, April 1, 1920, and should be construed together. Upon this appeal the constitutionality of these laws has not been questioned.

Chancellor Kent, in his Commentaries (volume 1, p. 462), says:

"The words of a statute, if of common use, are to be taken in their natural, plain, obvious, and ordinary signification."

In Waller v. Harris, 20 Wend. 555, 561 (32,Am. Dec. 590), Mr. Justice Bronson writes:

"Except in relation to a few old statutes which were long since overwhelmed by commentaries and decisions, the current of authority at the present day is in favor of reading statutes according to the natural and most obvious import of the language, without resorting to subtle and forced constructions for the purpose of either limiting or extending their operation. Courts cannot correct what they may deem either excesses or omissions in legislation, nor relieve against the occasionally harsh operation of statutory provisions, without the danger of doing vastly more mischief than good."

In People v. Purdy, 2 Hill, 31, 36, Mr. Justice Bronson again records his reluctance to look beyond the words of the Constitution of the state, for the purpose of construing it, "where the language is so plain and explicit that it is impossible to make it mean more than one thing, unless we first lose sight of the instrument itself and allow ourselves to roam at large in the boundless field of speculation." To the same effect writes Paige, Senator, in Purdy v. People, 4 Hill, 384, 398), in reference to the doctrine of strict construction:

"If courts are allowed to depart from it, and venture upon the perilous experiment of substituting, for the clear language of the instrument, their own notions of what it ought to have been or what its framers intended, there will be an end of written Constitutions, and of all attempts to fix limits to legislative and judicial power."

Emphasizing the rule that, in the interpretation of a statute, courts should primarily scrutinize the words of the statute itself, Johnson, J., in Newell v. People, 7 N. Y. 9, 97, says:

"Whether we are considering an agreement between parties, a statute or a constitution, with a view to its interpretation, the thing we are to seek is, the thought which it expresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order and grammatical arrangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity, and no contradiction between different parts of the same writing, then that meaning apparent upon the face of the instrument is the one which alone we are at liberty to say was intended to be conveyed. In such a case, there is no room for construction."

In McCluskey v. Cromwell, 11 N. Y. 593, 601, Allen, J., accentuates the need of seeking the intent of the framers of a statute in the statute itself, in these words:

"It is beyond question the duty of courts, in construing statutes, to give effect to the intent of the law-making power, and seek for that intent in every legitimate way. But in the construction, both of statutes and contracts, the intent of the framers and parties is to be sought, first of all, in the words and language employed, and if the words are free from ambiguity and doubt, and express plainly, clearly, and distinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning."