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a pre-existing contract; and, secondly, that the granting of a stay of such length was an abuse of discretion by the trial judge. Chapter 137 of the Laws of 1920 is entitled:

"An act in relation to summary proceedings to recover the possession of real property in cities of the first class or in cities in a county adjoining a city of the first class during the existing emergency."

It is limited in its scope to recover the possession of premises occupied for dwelling purposes, and it is affirmatively recited that

"The relief hereby provided shall be in addition to relief provided by any other act, the provisions of which are not inconsistent herewith. This act being emergency legislation, its provisions shall be liberally construed to carry out the intent thereof."

Section 3 of that act reads as follows:

“Discretionary Stay.-Where the final order in such a proceeding establishes that the occupant is holding over and continuing in possession of the demised premises, after the expiration of his term, without permission of the landlord, the court, judge or justice making such order, on application of the occupant, may, in its or his discretion and subject to the conditions prescribed by this act, stay the issuance of a warrant and also stay any execution to collect the costs of the proceeding, for such period, not more than twelve months, as the court, judge or justice, in its or his discretion, may deem proper."

The act then, in section 4, provides that the trial judge shall hear the parties upon the application for a stay, and, if it appears that the premises are used for dwelling purposes, and that the applicant cannot secure suitable premises for himself and family within the neighborhood similar to those occupied, that he has used due and reasonable effort to secure such premises, that his application is made in good faith, and that he will abide by and comply with the terms and provisions prescribed by the court, judge, or justice, the act then provides for the tenant making a deposit in court as the judge may direct for the occupation of the premises for the period of the stay at the rate to which he was liable as rent for the month immediately prior to the expiration of his term, plus such additional amount as the judge may determine to be reasonable.

Summary proceedings to recover the possession of land were first brought into existence in this state by chapter 194 of the Laws of 1820, and were limited to two cases: First, expiration of the tenant's term; second, default in the payment of rent. In the latter case they could be maintained only if there was not sufficient distress on the premises to satisfy the rent. It was not coextensive with the landlord's right to maintain ejectment, and could not be maintained for breach of any other covenant of the lease than that to pay the rent. See Oakley v. Schoonmaker, 15 Wend. 226; Beach v. Nixon, 9 N. Y. 35. In 1846 distress for rent was abolished, and in 1849 the provision requiring the absence of sufficient distress as a condition for the maintenance of summary proceedings was repealed.

Previous to the act of 1820, above referred to, the only remedy the law furnished to the landlords for the recovery of lands upon the expiration of the tenant's term was the action of ejectment. This pro

(182 N.Y.S.)

ceeding was expensive and dilatory as against a tenant litigiously inclined. The statute of 1820 was designed to remedy this condition by providing the landlord with a simple, speedy, and inexpensive summary method of regaining the possession of his premises. See McAdam on Landlord and Tenant, vol. 3, p. 3.

[2] It thus appears that the act relating to summary proceedings was a remedy first created by the Legislature. Ordinarily, a remedy created by the Legislature may be repealed by the Legislature. The various acts passed by the Legislature in 1920, at the instance of the joint legislative committee on housing, do not abolish the remedy, but considerably modify the practice and procedure heretofore existing.

[3, 4] The Legislature has made a declaration of fact of the existence of an emergency and has declared in effect that congested housing conditions have seriously affected and endangered the public welfare, health, and morals. It must be presumed that the Legislature had before it, when the statute in question was passed, any evidence that was required to enable it to act; and if any special finding of fact was needed in order to warrant the passage of this particular act, the passage of the act itself was to be treated as the equivalent of such finding. See Grainger v. Douglas Park Jockey Club, 148 Fed. 513, 78 C. C. A. 199, 8 Ann. Cas. 997; 6 Ruling Case Law, under the topic, "Constitutional Law," § 112. The courts will not make a separate investigation of the facts, or attempt to decide whether the Legislature has reached a correct conclusion with respect to them. Viemeister v. Wright, 179 N. Y. 235, 72 N. E. 97, 70 L. R. A. 796, 103 Am. St. Rep. 859, 1 Ann. Cas. 334.

[5] Chapter 137 of the Laws of 1920 was clearly enacted in the exercise of the police power of the state. Its purpose was to promote the welfare of the more thickly populated sections of the state by reason of a shortage in the supply of housing facilities. The prohibition in the federal Constitution that no state Legislature shall pass. any law impairing the obligation of contracts does not restrict the power of the state to protect the public health, public morals, or the public safety, in so far as the one or the other may be involved in the execution of such contracts.

[6] Familiar instances of this power are when parties enter into contracts, perfectly lawful at the time, to sell liquor, operate a brewery or distillery, or carry on a lottery, all of which are subject to impairment by a change of policy on the part of the state prohibiting the establishment or continuance of such traffic. Parties, by entering into contracts, may not estop the Legislature from enacting laws intended for the public good. See Ruling. Case Law, topic, "Constitutional Law," § 195; Manigault v. Springs, 199 U. S. 473, 26 Sup. Ct. 127, 50 L. Ed. 274.

The legislative act under review having been passed under the circumstances above noted, it must be held to have been a valid exercise of power, and, for that reason, it cannot be said that the law is void by reason of impairing the obligation of contracts.

[7] Nor is there any vested right to a particular remedy. See National Surety Co. v. Architectural Decorating Co., 226 U. S. 276, 33 Sup. Ct. 17, 57 L. Ed. 221. A statute is not unconstitutional merely because it changes, abolishes, or impairs an existing remedy or a cause of action that has accrued prior to the passage of the act.

"Statutes concerning remedies are such as relate to the course and mode of procedure to enforce or defend a substantive right. Matters which belong to the remedy are subject to change and alteration, and even repeal, provided the legislation does not operate to impair a contract or deprive one of a vested property right. If the changing or repealing statute leaves the parties a substantial remedy, the Legislature does not exceed its authority. Rights and remedies shade one into the other so that it is sometimes difficult to say that a particular act creates a right or merely gives a remedy. So also a statute, under the form of taking away or changing a particular remedy, may take away an existing property right, or impair the obligation of a contract." Ettor v. Tacoma, 228 U. S. 155, 33 Sup. Ct. 428, 57 L. Ed. 773.

Clearly the statute under review is remedial, and the remedy is only modified in its form to what it was before. In addition to that, owners of real property still have the remedy of an action in ejectment. It cannot be said, therefore, that owners of property have been deprived of all remedy under such a state of facts.

[8] The second ground of appeal urged by the appellant is that the court below abused its discretion in granting a stay of the issuance of the warrant until October 31, 1920. As before pointed out, this is an appeal from an order, dated April 19, 1920, granting a stay, and the order was entered in a proceeding specially provided for in chapter 137 of the Laws of 1920. The final order in the summary proceeding is dated April 9, 1920, and there is no appeal taken from said final order. Section 154 of the Municipal Court Code (Laws 1915, c. 279) enumerates what appeals may be taken from the Municipal Court to the Appellate Term of the Supreme Court. An order granting a stay, such as has been made in this proceeding, is not one of the orders therein enumerated. Subdivision 8 of said section allows an appeal to the Appellate Term from "an order which the court had not the power to make." As before pointed out, the court had the power to make the order which is the subject of this appeal.

Section 155 of the Municipal Court Code relates to the review of intermediate orders, and provides as follows:

"An appeal taken from a judgment or final order brings up for review an intermediate order which is specified in the notice of appeal and necessarily affects the judgment or final order and has not already been reviewed upon a separate appeal.

"An order made after judgment or final order is deemed to have been made in the action or special proceeding within the meaning of this section."

The only way, therefore, that the appellant can review the order granting the stay, is to appeal from the final order in the summary proceeding and specify in said notice of appeal that the appellant desires a review of the order granting the stay, which, under the foregoing section, is deemed to have been made in the special proceeding and to be an intermediate order.

(182 N.Y.S.)

This last procedure the appellant has not followed, and this court has therefore no jurisdiction to review the order granting the stay. The appeal from the order is dismissed, without costs.

CLARK and CROPSEY, JJ., concur.

SCHWARTZ, JAFFEE & CHAS. D. JAFFEE CO., Inc., v. O. B. POTTER PROPERTIES, Inc.

(Supreme Court, Appellate Term, First Department. June 9, 1920.) Courts 189 (9)—Dismissal without notice for failure to file written complaint in Municipal Court held improper.

Where an action is commenced by service of summons bearing an indorsement that the cause of action was for money had and received, and the Municipal Court requires plaintiff to file a written complaint "within five days," without specifying whether the time should begin to run from the time the order was granted or from its service or entry, and plaintiff has no notice of the order, a judgment of dismissal on his failure to file a written complaint will be reversed, since plaintiff could not be put in default until notice of the granting of the order had been given him. Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by the Schwartz, Jaffee & Chas. D. Jaffee Company, Incorporated, against the O. B. Potter Properties, Incorporated. From an order denying motion to vacate a judgment in favor of defendant, plaintiff appeals. Reversed, and leave to file complaint granted.

Argued May term, 1920, before BIJUR, MULLAN, and WAGNER, JJ.

David Dreschler, of New York City, for appellant.

John Larkin, of New York City (Alex. S. Andrews, of New York City, of counsel), for respondent.

PER CURIAM. This action was commenced by the service of a summons which bore an indorsement stating that the cause of action was for "money had and received." Upon notice to the plaintiff an order was made by the court below requiring the plaintiff to file a written complaint "within five days" (M. C. C. § 78, subd. 4), and that in the event of the failure to so file the complaint and to serve the same within the time aforesaid "the action be dismissed, with costs to the defendant." The order was silent as to whether the five days should begin to run from the time it was granted or from its service or entry. It appears that the plaintiff had no notice of the granting of this order, or of its entry, and no copy was ever served upon him. Some time after the time specified in the order had elapsed, the defendant, without notice to the plaintiff, entered an order dismissing the complaint, and the clerk entered a judgment dismissing the complaint, with costs. Thereafter the plaintiff made a motion to vacate the judgment upon the ground that it was "irregular and void," which

motion was denied.

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

We agree with the plaintiff that the judgment was irregularly entered, not for the reason that rule 3 of the Municipal Court Rules applies, for that rule has reference to such papers as are required to be filed by attorneys who appear for either party, but for the reason that the plaintiff herein, under the order made in this case and in the ordinary course of procedure, could not be put in default, in failing. to comply with its terms, until notice of the granting of the same had been given him in some form.

Order reversed, with $10 costs, judgment vacated, and plaintiff permitted to file and serve a written complaint within five days after service of a copy of the order entered hereon.

(192 App. Div. 390)

MANDEL v. GUARDIAN HOLDING CO., Inc. (LEE, Intervener). (Supreme Court, Appellate Division, First Department. June 11, 1920.) 1. Parties 40 (2)-When third party may intervene.

Under Code Civ. Proc. § 452, a third party may intervene in an action, if he has an interest in real property the title to which may in any manner be affected by the judgment, or if such intervention is necessary to a complete determination of the controversy; it being unnecessary that such party have rights in the subject-matter of the action, or in the real estate to be affected by the judgment, superior to those of the plaintiff.

2. Parties 40 (3)—Purchaser had right to intervene in action against vendor by holder of option.

Where vendor, who had given third party an option to purchase property, sold property subject to option, purchaser, under Code Civ. Proc. § 452, had a right to intervene in action against vendor by holder of option for specinc performance.

3. Specific performance 13-Remedy against vendor unable to convey is action for damages.

Where vendor, prior to sale of land, had given third party an option to purchase it, the remedy of the holder of the option, on vendor's inability to convey, was an action for damages for breach of the option contract, and not an action for specific performance.

Appeal from Special Term, New York County.

Action by Henry Mandel against the Guardian Holding Company, Incorporated, in which James T. Lee moved to intervene. From an order denying the motion of James T. Lee for leave to intervene and to be made a party defendant, he appeals. Reversed, and motion granted.

Argued before CLARKE, P. J., and LAUGHLIN, DOWLING, PAGE, and MERRELL, JJ.

Aronson & Salant, of New York City (Louis Salant, of New York City, of counsel, and Joseph J. Cunningham, of New York City, on the brief), for appellant.

Eisman, Lee, Corn & Lewine, of New York City (Joseph J. Corn, of New York City, of counsel), for respondent.

Robert E. McLear, of New York City, for defendant.

PAGE, J. This action was brought by Henry Mandel against the Guardian Holding Company, Incorporated, for the specific perform

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

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