First Department, December, 1920.

[Vol. 194. Reynolds v. Common Council, 140 id. 300; Livingston v. Livingston, 173 id. 377; Germania Savings Bank v. Suspension Bridge, 159 id. 368.) The decision of the issue in favor of the relator and the granting of the final order constituted a judgment on the issues which, by failure to appeal therefrom, has become final, and of that unquestionably it was not competent for the Legislature to deprive the relator. (Reich v. Cochran, 151 N. Y. 122; 105 App. Div. 542; People v. Kelsey, 14 Abb. Pr. 378; Altschuler v. Lipschitz, 113 N. Y. Supp. 1058; Dyckman v. Mayor, etc., 5 N. Y. 434.)

By thus withdrawing from the court which had granted the stay until October first authority to continue it further, the tenant's rights under the stay granted by the court terminated on October first, and he had no further right unless the attempted legislative stay was valid, for the only other authority for a stay is in the provisions of chapter 210 of the Laws of 1920 (amdg. N. Y. City Mun. Ct. Code [Laws of 1915, chap. 279], § 6, subd. 3), authorizing the Municipal Court, among other things, upon the rendering of a final order in summary proceedings, to grant a stay of the execution of the warrant for not more than thirty days, but that was not invoked, and if it had been it would have been inapplicable since the authority thereby conferred relates only to an original stay. I am of opinion, therefore, that the landlord, prior to the enactment of chapter 942, had acquired a vested right to have a warrant issued under a final order on October first and that this was a property right of which he could not be deprived by the act of the Legislature. (Gilman v. Tucker, supra; Livingston v. Livingston, supra.) It is claimed, however, that the statute may be sustained on the theory that it is merely a temporary suspension of the right of the landlord under the final order and that it was authorized by the public emergency. Appellant relies in support of this contention upon Edmonson v. Ferguson (11 Mo. 344) where a State statute suspending actions and proceedings against volunteers while absent from the State during the Mexican War was sustained as valid, and on Breitenbach v. Bush (44 Penn. St. 313) sustaining the validity of a State statute staying civil process against any person in the service of the State or of the United States during the War of the Rebellion for the term of

App. Div.]

First Department, December, 1920.

such service and for thirty days thereafter. The decisions in those cases might well have been sustained on the ground that the statutes were enacted to enable the defendant in the service of his State or country to have his day in court; and in so far as the opinions go upon the theory that there was a well-recognized distinction between the obligations of a contract and the remedies afforded for the enforcement of its obligations they are not in harmony with the decisions of the Federal court which have been cited in Levy Leasing Co., Inc., v. Siegel (194 App. Div. 482), which was argued and is decided herewith, and they need not be further discussed here. In Breitenbach v. Bush (supra), however, the court stated that where the parties contract concerning a remedy, the remedy becomes a part of the obligation and may not be affected by subsequent legislation. In the case of leases, there is a contract either express or implied that the tenant will surrender possession to the landlord at the expiration or termination of his term, and the statute extending his term, as does the statute now under consideration, constitutes, if not an impairment of a remedy provided for in the contract, at least, an impairment of the obligations of the contract. (See U. S. Const. art. 1, § 10, subd. 1.) Hoffman v. Charlestown Five Cents Savings Bank (231 Mass. 324), sustaining the constitutionality of the Soldiers' and Sailors' Civil Relief Act (40 U. S. Stat. at Large, 440, chap. 20; Id. 444, § 302), which provided for a stay of proceedings in certain cases where the defendant was in the military service, is also cited in support of the contentions of the respondents, but I find nothing in the opinion bearing materially on the point here presented for decision.

If chapter 947 of the Laws of 1920 (adding to Code Civ. Proc. § 1531a), withdrawing the remedy by ejectment, be held to be unconstitutional and void, it would seem to follow that it was incompetent for the Legislature by this statutory stay to deprive the owner of the possession of his property and secure possession to the tenant, whose term had expired, for the period of the statutory stay. However, since the rent cases were argued before this court and we had determined how we would decide them and our opinions had been formulated, our attention has been drawn to a decision of the Appellate Division in the Second Department in People ex rel.

First Department, December, 1920.

[Vol. 194. Rayland Realty Co., Inc., v. Fagan (194 App. Div. 185) in which that court by a divided vote sustained the statute here involved as valid with respect to cases in which final orders had been made before its enactment. With all due deference to the opinions of the learned justices who wrote in favor of the validity of the statute, we still adhere to our own views; but since that decision and ours are soon to be reviewed by the Court of Appeals, in order that there may not be a different rule with respect to the remedies under the same statute in different parts of the same city, we will follow that decision and reverse the order and deny the motion, but without costs.

CLARKE, P. J., DOWLING and GREENBAUM, JJ., concur; MERRELL, J., concurs in result.

Order reversed and motion denied, without costs.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. SYDNEY BALLIN, Respondent, v. THOMAS O'CONNELL, Clerk of the Municipal Court of the City of New York, Borough of Manhattan, First District, Appellant.

First Department, December 24, 1920.

See head note in People ex rel. H. D. H. Realty Corporation v. Murphy (ante, p. 530).

APPEAL by the defendant, Thomas O'Connell, as clerk, 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 23d day of October, 1920, granting a peremptory writ of mandamus.

John F. O'Brien of counsel [Henry J. Shields and James D. Sullivan with him on the brief], for the appellant.

J. Sidney Bernstein of counsel, for the respondent.

William D. Guthrie and Julius Henry Cohen, Special Deputy Attorneys-General, for the Attorney-General.

App. Div.]

First Department, December, 1920.

Elmer G. Sammis and Bernard Hershkopf of counsel, for the Joint Legislative Committee on Housing, as amici curiæ.

David L. Podell, as amicus curiæ.

LAUGHLIN, J.:

The relator on his own affidavit and on the affidavit of a city marshal obtained an order to show cause, on which the motion was heard. The affidavit of the relator states that he is the owner of premises known as 47-49 Morton street, borough of Manhattan; that in July, 1920, a portion of said premises were in the possession of one Edward Lang, to whom he had previously rented them for the period of one month, which term had expired; that in July, 1920, he instituted a proceeding in the Municipal Court, First District, Borough of Manhattan, praying for a final order awarding him the possession of said premises, and for a warrant to remove the said tenant; that the tenant appeared, answered and the proceeding came on for trial; that on the said trial a stipulation was entered into whereby it was consented between the parties that a final order be made and entered awarding to the landlord the possession of the premises, and that a stay of the execution of the warrant be had until October 1, 1920, the tenant in the meantime paying the same rate of rent; that such order was entered on July 22, 1920, and that no appeal was taken therefrom; that no other stay has been granted; that on October 4, 1920, a city marshal, acting under his direction, applied to the clerk for a warrant under such final order, but the clerk refused to sign, issue or deliver the warrant and still refuses so to do; that he seeks to obtain possession of the premises in order to alter and improve them in accordance with plans duly filed for which contracts have been let; that the tenant is still in possession of said premises, and that the landlord is sustaining financial loss through the refusal of the clerk to issue the warrant. His affidavit is supported by that of the city marshal.

The court directed that a peremptory writ of mandamus issue requiring the appellant as such clerk of the Municipal Court to sign, deliver and issue to the marshal a dispossess warrant as provided in the final order.

The dispossess proceeding to which the application herein

First Department, December, 1920.

[Vol. 194. relates was instituted in July, 1920, to recover possession of premises on the ground that the tenant was holding over after the expiration of the term without the consent of the landlord.

The only material difference between this proceeding and People ex rel. H. D. H. Realty Corp. v. Murphy (194 App. Div. 530) is that here the final order was entered on a stipulation in open court made after issue was joined on the petition and answer and without a trial and decision on the issues by the court and the same stipulation provided that the issuance of the dispossess warrant should be stayed until October 1, 1920.

Counsel for the respondent here makes the same contention as was made by counsel for the respondent in the other mandamus proceeding. He, however, further contends that the stipulation constitutes a contract by which the tenant agreed, in effect, to waive the benefit of the provisions of said chapter 137 of the Laws of 1920, which had not then been amended by excepting New York city therefrom (Laws of 1920, chap. 948), authorizing the court to grant a stay of the dispossess warrant, and that at the expiration of the stipulated stay the dispossess warrant might be issued. There is force in the contention that this constitutes a contract with respect to the remedy, of which the landlord could not be deprived by a subsequent act of the Legislature, even though it had power so to stay the remedy where there is no contract with respect to the remedy. (See Breitenbach v. Bush, 44 Penn. St. 313.) It is, however, unnecessary to decide the point, for as stated in the opinion in People ex rel. H. D. H. Realty Corp. v. Murphy (supra) we would grant the writ in any event were it not for the decision made by the Second Department in People ex rel. Rayland Realty Co., Inc., v. Fagan (194 App. Div. 185), to which reference is made in that opinion. We will, however, for the reasons stated in the other opinion follow that decision and reverse the order and deny the motion, but without costs.

CLARKE, P. J., DOWLING and GREENBAUM, JJ., concur; MERRELL, J., concurs in result.

Order reversed and motion denied, without costs

M