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First Department, December, 1920.

the tenant under the former lease, on the theory that by his holding over it had become renewed from month to month or year to year, as the case might be, or to regard the tenant as a trespasser who, however, could not be removed, and to sue him for use and occupation. If he pursued the latter remedy he could at most only obtain a money judgment enforcible by a property execution, which in many cases would be of little value. If he elected to regard the lease as renewed and to demand rent, he might have a summary proceeding under chapter 945 (amdg. Code Civ. Proc. § 2231, subd. 2a, as added by Laws of 1920, chap. 139) if the rent demanded was not greater than the amount for which the tenant was liable for the month preceding the default, or he might sue for rent only and recover a reasonable rental, and on the failure of the tenant to pay, obtain a warrant for his removal under chapter 944 (amdg. Laws of 1920, chap. 136). It is quite plain, however, that the Legislature has attempted to give the tenant the privilege of remaining in possession during this period without expressly imposing any obligation upon him with respect to the payment of rent or fixing the period for which he shall be liable for rent; and while tying the hands of the landlord, has left the tenant at liberty to remove at will and without any notice to afford the landlord an opportunity of letting the premises to others. There has been here no attempt to take the property of the landlord under the power of eminent domain and afford him an adequate remedy for the value of the use thereof. It is unnecessary, therefore, to consider whether it would be competent for the Legislature by appropriate legislation providing for adequate compensation thus to take the property of one for the use of another. The statute transfers without making any provision for compensation the use of the property of the landlords to the tenants. Some very radical arguments have been made in favor of this legislation; but no counsel has contended that it would be competent for the Legislature, for this or any other purpose, without the exercise of the power of eminent domain and making adequate provision for just compensation to the landlords, to compel the owners of such property against their will to admit thereto people desiring living apartments who APP. DIV.-VOL. CXCIV. 33

First Department, December, 1920.

[Vol. 194. might be unable to find them elsewhere. There is in my opinion no more justification for this legislation under the Constitution than there would be for requiring the landlords to open up vacant apartments for the use of any one without housing accommodations. The fundamental objection to the legislation, even if it were otherwise authorized, is that the Legislature has here assumed to determine not merely facts existing in the past and at the time of the enactment of the statute, which concededly was within its province, but the facts as they may exist from day to day throughout the period during which the owners are deprived of the possession of their property, and has made inconsistent determinations with respect thereto. In other words, I think that the courts cannot well question that an emergency existed authorizing the exercise of the police power by the Legislature, but I am of the opinion that it has not adopted means appropriate to the end, having due regard to the rights of both landlords and tenants, but has arbitrarily given the tenants virtually the free use of the property of the landlord for more than two years unless the landlord submits to the coercion and elects to proceed for rent at the former rate or for a reasonable rental and in either of which events, if the tenant does not pay, the public morals, health and safety are deemed not to be endangered by his removal without regard to whether or not he and his family may find other shelter. In authorizing the removals in those instances, the effect of any legislative determination that it would be impossible for evicted tenants to find other accommodations, to be found in this or the other statutes enacted at the same time, is destroyed, for surely it was not within the province of the Legislature to peer into the future and decide that if a tenant should fail to pay rent at the rate for which he was liable during the preceding month or a reasonable rental determined by the court or jury, the public welfare would not be endangered or affected by his eviction, but that in all other cases the public morals, health and safety would be so endangered by the eviction of a tenant wrongfully holding over, who, in the eye of the law, is a trespasser, that it was necessary for the public welfare that he should not be evicted even though the owner desired to discontinue leasing his property and desired possession thereof

App. Div.]

First Department, December, 1920.

to use it for any lawful purpose or not to use it at all. As to all other tenants, the Legislature has decreed that the landlord must permit them to continue in against his will and must continue to furnish them the accommodations provided for in section 2040 of the Penal Law at the risk of criminal prosecution therefor; and the only remedy left to him to obtain possession of his property, with the exceptions stated in the statute, depending on the use for which he desires possession, to which reference has been made, is in the two instances where he elects to take rent at the rate charged for the prior month and institute a summary proceeding for non-payment thereof or to bring an action for the rent, and in both instances the recovery would be limited to a reasonable rental, and if that were paid, the trespasser is permitted to remain in possession. The Legislature has assumed to decide in advance that at no time during the period during which it has attempted to suspend, excepting in the instances herein stated, every remedy by which a landlord may regain possession of his property, may a tenant be removed without endangering the public health, safety and order; and that determination was evidently made on the theory that at no such time will there be available accommodations for the housing of evicted tenants save in the particular instances of tenants evicted for not paying at the former rate or a reasonable rate and that it is, therefore, necessary thus to suspend all remedies in other cases, lest otherwise the public health, morals, safety and order may be endangered by tenants and their effects being thrown into the public streets with no shelter available. I am of the opinion that it was not competent for the Legislature so to decide. The Supreme Court, in which this action was brought, is vested by the Constitution with general jurisdiction in law and equity. (Art. 6, § 1.) The right to recover real property by an action in ejectment was a common-law right (Bradt v. Church, 110 N. Y. 542; Bryan v. McGurk, 200 id. 332; Lewis v. Cocks, 23 Wall. [U. S.] 466; Prospect Park & Coney Island R. R. Co. v. Morey, 155 App. Div. 347), and full jurisdiction over such actions is vested in the Supreme Court. By this statute the Legislature has attempted to suspend the exercise of that jurisdiction for upwards of two years and instead of leaving the court free to entertain the action and decide the issues presented for decision

First Department, December, 1920.

[Vol. 194. and determine whether its process for delivering possession of the property to the owner shall be forthwith issued or withheld for a period, it has attempted to prohibit the court even from entertaining the action and deciding the issues. Surely this drastic legislation cannot be sustained on the theory that it was essential to the health of tenants and their families to give them this assurance that their possession as trespassers could not be disturbed and that they need not pay for the use of the property unless they had property subject to execution, and need pay no rent unless the landlords elected to ratify the trespass and then only after a court should decide what would be a reasonable rental. It is settled law that the court has full control over writs of possession and may stay or enjoin the issuance thereof whenever the circumstances require that to be done, and that one of the grounds on which this jurisdiction is exercised is that an "oppressive use " of the writ is threatened or is being made. (Jackson v. Stiles, 3 Wend. 429; Knox v. McDonald, 25 Hun, 268; Granger v. Craig, 85 N. Y. 619; Cornell v. Dakin, 38 id. 253; Chadwick v. Spargur, 1 Civ. Proc. Rep. 422; Rumsey v. Otis, 133 Mo. 85; Hay v. Valley Pike Co., 38 Penn. Sup. Ct. 145; 15 Cyc. 189; 17 id. 1135; Newell Ejectment, 816; Warvelle Ejectment, 520; Freeman Executions, § 37.) Not only has the court authority to stay the execution of its final judgments and writs, but where the process is abused, as by evicting a person who is ill, it affords a remedy by way of damages. (Preiser v. Wielandt, 48 App. Div. 569; Bradshaw v. Frazier, [Ia.] 85 N. W. Rep. 752. See, also, Herter v. Mullen, 159 N. Y. 28.) I do not question the power of the Legislature to legislate on this subject as by forbidding the eviction of a person who is ill or who is suffering from a contagious disease by which the public health may be endangered, and to alter and regulate the jurisdiction and proceedings in law and in equity conferred upon it by article 6, section 3, of the Constitution, or to provide that during such emergency writs of possession should not issue where it is shown that the execution thereof would endanger public health, morals, safety or order, owing to the fact that there were no available housing accommodations for the persons evicted. That would be merely a regulation of the power already vested in and possessed by the court, which, however,

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First Department, December, 1920.

it could and would exercise without any such attempted regulation. Instead, however, of so providing the Legislature has attempted to withdraw from the Supreme Court, which is a co-ordinate branch of the State government deriving its jurisdiction and authority not from the Legislature but from the Constitution, all jurisdiction in the premises for the period specified. I am of the opinion that this constitutes a clear encroachment upon the jurisdiction of the court, in violation of article 6, section 1, of the State Constitution. (People ex rel. Mayor v. Nichols, 79 N. Y. 582; Alexander v. Bennett, 60 id. 204; De Hart v. Hatch, 3 Hun, 375; Riglander v. Star Co., 98 App. Div. 101; affd., 181 N. Y. 531; Mussen v. Ausable Granite Works, 63 Hun, 369; Gilman v. Tucker, 128 N. Y. 190.)

I regard this statute also as plainly unconstitutional on the ground that it was the final enactment of the Legislature culminating in the removal of every remedy, excepting in the particular instances stated, of an owner for the recovery of the possession of real property occupied for dwelling purposes by tenants whose terms had expired and who were under contract obligations expressed in the leases or implied by law to vacate the premises and surrender possession thereof to the owner or their landlord. The power of the Legislature to take away one remedy and substitute another is not questioned; but that was not done, and the right to an appropriate remedy by an appeal to the courts for the performance of a contract obligation is a part of every lawful contract and is read into it, and the destruction or substantial destruction by such a suspension of that remedy by a legislative act constitutes the taking of property without due process of law. (Gilman v. Tucker, 128. N. Y. 190; Fletcher v. Peck, 6 Cranch, 87; Gantly v. Ewing, 3 How. [U. S.] 707; Planters' Bank v. Sharp, 6 id. 301; Seibert v. Lewis, 122 U. S. 284; McGahey v. Virginia, 135 id. 662; Ex parte Milligan, 4 Wall. 2; Kring v. Missouri, 107 U. S. 221; Green v. Biddle, 8 Wheat. [U. S.] 1; reargument, Id. 75-84; Bronson v. Kinzie, 42 U. S. [1 How.] 311; Edwards v. Kearzey, 96 id. 595; Effinger v. Kenney, 115 id. 566; Walker v. Whitehead, 16 Wall. [U. S.] 314; McCracken v. Hayward, 43 U. S. [2 How.] 608; Cooley Const. Lim. [7th ed.] 411; U. S. Const. 14th Amendt. § 1; State Const. art. 1, § 6.)