First Department, December, 1920. [Vol. 194. In Gilman v. Tucker (supra) the court held: "The Legislature has no power to deny, for any cause, to a party who has been illegally deprived of his property, access to the constitutional courts of the State for relief; the denial of a remedy for the wrong inflicted deprives him of his property as effectually as if it had been taken from him by direct legislative enactment." In Walker v. Whitehead (supra) the court said: "The laws which exist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it. This embraces alike those which affect its validity, construction, discharge and enforcement. Nothing is more material to the obligation of a contract than the means of its enforcement. The ideas of validity and remedy are inseparable, and both are parts of the obligation which is guaranteed by the Constitution against impairment." Cooley (supra) says: "Where a statute does not leave a party a substantial remedy according to the course of justice as it existed at the time the contract was made, but shows upon its face an intention to clog, hamper or embarrass the proceeding to enforce the remedy, so as to destroy it entirely, and thus impair the contract so far as it is in the power of the Legislature to do it, such statute cannot be regarded as a mere regulation of the remedy, but is void, because a substantial denial of right." I have not overlooked the decisions of Edmonson v. Ferguson (11 Mo. 344); Breitenbach v. Bush (44 Penn. St. 313) and Hoffman v. Charlestown Five Cents Savings Bank (231 Mass. 324), in the first two of which it was held competent for the State Legislature to suspend during the Mexican War and the War of the Rebellion actions and proceedings against volunteers while absent from the State in the military or naval service of their State or country, and in the last of which, the Soldiers' and Sailors' Civil Relief Act (40 U. S. Stat. at Large, 440, chap. 20; Id. 444, § 302), authorizing and requiring the courts in any proceeding commenced against one who is in the military service to enforce an obligation secured by a mortgage or other security in the nature of a mortgage upon real or personal property, where he owns the legal or equitable title, to stay proceedings therein on their own motion App. Div.] First Department, December, 1920. or on his application, unless it shall appear that his inability to comply with the terms of the obligation is not materially affected by reason of his military service, and forbidding in such cases a strict foreclosure under power of sale without an order of the court, was sustained as a war measure within the power of Congress and, therefore, the supreme law of the land. It is manifest that those statutes, which were general and not, as here, designed to suspend the right of an owner to recover possession of his own property, were enacted on the theory of affording the defendants a reasonable opportunity to defend the litigation. In my opinion they are not materially in point here, for the attempted suspension of the remedy by the statute in question was not to enable the interposition of any available defense, but on the assumption that there was and could be no defense and that the emergency warranted the Legislature in giving the tenants the right to remain in possession in violation of their contract obligations, not merely until they could obtain suitable accommodations, but arbitrarily and without regard to the facts as they might develop in the future for the entire period specified, and without attempting to make any adequate provision by which the landlord, who, it was evidently assumed, would be obligated to continue service to the tenants as provided in section 2040 of the Penal Law, would receive compensation for the use of his premises. There are precedents for the suspension, for a limited specified time during a financial depression or during war, by general laws, of the enforcement of contract obligations, but such suspension must be general and may not be made to fit individual cases or for particular localities. (Cooley Const. Lim. [7th ed.] 414, 558; Chadwick v. Moore, 8 Watts & Serg. [Penn.] Rep. 49; Stevens v. Andrews, 31 Mo. 205; Bunn, Raigul & Co. v. Gorgas, 41 Penn. St. 441; Hasbrouck v. Shipman, 16 Wis. 296; Bull v. Conroe, 13 id. 233; Holden v. James, 11 Mass. 396; Bender v. Crawford, 33 Tex. 745. See, also, Gilman v. Tucker, 128 N. Y. 190.) That doctrine is founded upon the requirements of the public interests and welfare that the rights of creditors to take the property of their debtors on execution shall be suspended temporarily; but no decision has been cited, and I have found none, sustaining on any theory First Department, December, 1920. [Vol. 194. a statute, such as this, transferring the use of the property of one to another who has no right thereto, and legalizing for any period the latter's possession thereof contrary to the express terms of the contract between the parties; and in Chadwick v. Moore (supra) it was stated by the court, in discussing the authority of the State to suspend executions temporarily, that if the Legislature attempted to suspend the right of a mortgagee to recover possession by an action of ejectment based on his legal title, it would doubtless be unconstitutional in that particular aspect, and that a statute suspending a remedy must operate alike on all creditors and debtors. I think there is a plain distinction between attempting to suspend generally for a limited time actions or remedies for the enforcement of contract rights by money judgments and executions for the sale of the property of the debtor and an attempt to suspend all remedies of the owners of a particular class of property for recovering the possession thereof according to the express terms of the contract under which the possession was surrendered by the owner or landlord. I am, therefore, of opinion that the statute is unconstitutional and void on the two grounds stated. Since this opinion was written we have been furnished with a copy of the opinion of the United States District Court for the Southern District of New York, three judges sitting, in Brown Holding Co. v. Feldman (269 Fed. Rep. 306), recently decided, sustaining this statute; but with all due deference to the learned opinion in that case, we must follow our own views. It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to the defendant to withdraw the demurrer and to answer on payment of the costs of the appeal and the motion. CLARKE, P. J., and DOWLING, J., concur; GREENBAUM, J., concurs in result; MERRELL, J., dissents. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to defendant to withdraw demurrer and to answer on payment of said costs. App. Div.] First Department, December, 1920. 810 WEST END AVENUE, INC., Appellant, v. HENRY R. STERN, Respondent. First Department, December 24, 1920. See head note in Guttag v. Shatzkin (ante, p. 509). APPEAL by the plaintiff, 810 West End Avenue, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of November, 1920, denying plaintiff's motion for judgment on the pleadings, consisting of the complaint and a demurrer thereto, under section 547 of the Code of Civil Procedure. Louis Marshall [Lewis M. Isaacs with him on the brief], for the appellant. William D. Guthrie and Julius Henry Cohen, Special Deputy Attorneys-General [Raymond L. Wise of counsel], Elmer G. Sammis and Bernard Hershkopf, counsel for the Joint Legislative Committee on Housing, as amici curiæ, for the respondent. David L. Podell, as amicus curiæ. Joseph Seidman for Marcus Brown Holding Co., Inc., as amicus curiæ. Laughlin, J.: The complaint alleges that the plaintiff is a domestic corporation; that heretofore and prior to December 8, 1919, the defendant entered into possession of an apartment in the building known as 808 West End avenue, pursuant to an agreement between the defendant and 808 West End avenue, Inc., the then owner of the premises, and has since remained in possession; that the said agreement provided among other things that the term should end on September 30, 1920, and that at the end of the term the defendant should deliver up the premises in good condition, and that the landlord should have the right of re-entry for breach by the said defendant of any covenant of the said lease, a copy of which is annexed to the complaint; that on the 8th day of December, 1919, the said First Department, December, 1920. [Vol. 194. premises were conveyed to the plaintiff, and the plaintiff is now seized in fee thereof; that the said apartment was leased to the defendant as a private dwelling only; that the defendant refused to give up the said apartment at the termination of the lease on September 30, 1920; that acting on the authority of chapter 947 of the Laws of 1920 (adding to Code Civ. Proc. § 1531a), the defendant is depriving the plaintiff of the possession of said property, and insists that the plaintiff's right to recover possession has been suspended until November 1, 1922; that plaintiff is not seeking to recover the property because defendant is objectionable, nor to demolish the premises in order to erect a new one in its place, nor are the premises a building in the course of construction, nor have the premises been sold to a corporation formed under any cooperative ownership plan; that at the same session of the Legislature in 1920 which passed chapter 947, chapter 942 (adding to Code Civ. Proc. § 2231, subd. 1a) was enacted, which amended the Code of Civil Procedure relating to summary proceedings for the recovery of possession of real property in cities having a population of 1,000,000 or more by providing that no such proceedings could be had excepting the cases specifically referred to, and which, as shown by the allegations immediately preceding, are not applicable to this case; that by reason of passage of said statutes the right of the plaintiff to recover possession of these premises is sought to be taken away for a period of more than two years, and no remedy has been created by the Legislature in the place of the remedies suspended, and no other adequate remedy exists; that by reason of the premises, chapter 947 of the Laws of 1920 is null and void, in that it deprives the plaintiff of its property without due process of law, in violation of article 1, section 6, of the Constitution of the State of New York, and violates section 1 of the Fourteenth Amendment of the Constitution of the United States by depriving the plaintiff of the equal protection of the laws, and violates article 1, section 10, of the United States Constitution by impairing the obligation of the contract between the defendant and the plaintiff's grantor, and deprives the Supreme Court of the State of New York of its jurisdiction in law in violation of article 6, section 1, of the Constitution of the State. The prayer for relief is for possession of the premises. |