Misc.] Appellate Term, First Department, March, 1921. that the landlord had given the tenant the notice required by chapter 203 of the Laws of 1882, as amended by chapter 209 of the Laws of 1920, is error, and the final order entered thereon in favor of the tenant will be reversed and a new trial ordered. APPEAL by the landlord from an order dismissing the landlord's petition in the Municipal Court of the city of New York, borough of The Bronx, second district, for the removal of the tenant as a holdover. I. L. Broadwin, for appellant. Rosenberg & Rosenberg (Max Rosenberg, of counsel), for respondent. LEHMAN, J. The petition herein alleges that the tenant was a monthly tenant of premises owned by this landlord and that "in or about the end of October, 1920, the said Louis Tunick notified the petitioner herein that he the said Louis Tunick would quit and surrender the said premises on November 1, 1920, but holds over without the permission of the landlord." The tenant moved to dismiss this petition on the ground that it failed to allege that the landlord had given the tenant the notice required by chapter 203 of the Laws of 1882, as amended by chapter 209 of the Laws of 1920, and the trial justice granted this motion. It In the case of Hoske v. Gentzlinger, 87 Hun, 3, the court held that the statute upon which the tenant relied "was enacted for the benefit of tenants. required from a landlord a notice of his intention to terminate a tenancy, and protects tenants from removals without being afforded an opportunity to secure other property. But it has no application to a case where the tenancy is terminated by the act of the tenant. In such a case there is no reason that the landlord should serve a notice, and such a requirement Appellate Term, First Department, March, 1921. [Vol. 115. would be a useless one." In that case the landlord did not seek the remedy of summary proceedings but was himself sued for damages for an alleged wrongful action and the tenant seeks to distinguish that case on that ground, claiming that since the right to bring summary proceedings is purely statutory, the petition must allege all the facts necessary to bring the case within the provisions of the statute permitting such remedy and no plea or proof of other facts is sufficient to give the court jurisdiction nor can such jurisdiction be conferred by consent of the parties. The petition of the landlord alleges all the facts required by section 2231 of the Code of Civil Procedure to give the court jurisdiction. The statute upon which the tenant relies does not give the court any new jurisdiction or provide for any new form of proceeding, but, on the contrary, it merely provides a condition precedent for the benefit of the tenant before the landlord can use the remedy which the legislature had previously created. Since that condition precedent was created solely for the benefit of the tenant, the tenant has a right to waive it and he does waive it when he himself gives notice of his intention to remove from the premises. Such waiver does not confer upon the court any new jurisdiction not granted by the legislature but merely removes the limitation upon the right of the landlord to bring such proceedings which the legislature had seen fit to enact for the benefit of the tenant. Final order should, therefore, be reversed and a new trial ordered, with ten dollars costs to appellant to abide the event. MULLAN and BURR, JJ., concur. Final order reversed and new trial ordered, with ten dollars costs to appellant to abide event. Misc.] Appellate Term, First Department, April, 1921. EDWARD J. ROGAN and Another, Appellants, v. "RACHAEL" WEISS, Respondent. (Supreme Court, Appellate Term, First Department, February filed April, 1921.) Term - Landlord and tenant- monthly tenancy - when landlord may recover a fair and reasonable rent from tenant holding over service of notice not a condition precedent-Laws of 1882, chap. 203, as amended by Laws of 1920, chap. 209. Where a monthly tenant of premises in the city of New York holds over after the expiration of his term, without the permission of his landlord, the landlord under chapter 944 of the Laws of 1920 may recover a fair and reasonable rent while the tenant continues in possession of the premises, and a dismissal of the complaint on the ground that service upon the tenant of the notice specified in chapter 203 of the Laws of 1882, as amended by chapter 209 of the Laws of 1920, was a condition precedent to the maintenance of the action, is error for which a judgment entered in favor of the tenant will be reversed and a new trial ordered. APPEAL from a judgment of the Municipal Court of the city of New York, borough of The Bronx, second district, entered in favor of the defendant. Robert Moers (Harry Cohen, of counsel), for appellants. Thomas G. Price (Harry Crone, of counsel), for respondent. LEHMAN, J. The landlord has brought an action for the rental value of premises occupied by a monthly tenant. His complaint was dismissed on the ground that before the landlord can bring such an action he is required to serve upon the tenants the notice specified in chapter 203 of the Laws of 1882, as amended by chapter 209 of the Laws of 1920. Prior to the enact Appellate Term, First Department, April, 1921. [Vol. 115. ment of that statute, a monthly tenant could be removed by the landlord at the expiration of the month without any previous notice, because a monthly tenancy is a tenancy for a definite period, and a tenant occupying premises for a definite period is compelled to quit the premises at the end of such period. The statute did not create a new kind of tenancy, and the tenant has always had the right to remove from the premises at the expiration of his term, but it took away from the landlord the right to remove the tenant by summary proceedings or by re-entry obtained in any other way, unless he had previously given the required notice to the tenant. For practical purposes, if the tenant could not be removed from the premises without a previous notice, the statute had the same effect as if it had provided that unless the landlord gave previous notice to the tenant, the tenant had the option of automatically renewing his monthly tenancy at the expiration of the month by remaining in the premises. In other words, it compelled the landlord to accept the tenant as a holdover without any alternative of treating him as a trespasser. The enactment of the various statutes during the year 1920, which are popularly known as the rent laws, has changed this condition. The landlord, except in certain specified cases, cannot remove a monthly tenant at the expiration of his term, and the giving of a notice to remove confers no right to remove the tenant upon the landlord. The landlord, however, is not left without remedy against a tenant who holds over, but under chapter 944 of the Laws of 1920 he may recover a fair and reasonable rent for the premises while in the possession of the tenant. There can be no question but that this statute applies to monthly tenants as well as tenants holding upon other conditions, and it would be unreasonable to hold that the legislature intended that Misc-] Appellate Term, First Department, April, 1921. before bringing an action against a monthly tenant whose term has expired, the landlord must serve upon the tenant a notice stating that "unless the tenant removes from said premises on the day on which his term expires, the landlord will commence summary proceedings under the statute to remove such tenant therefrom," when the legislature itself has expressly declared that for a limited period the landlord shall have no right to commence such summary proceedings. It follows that the judgment must be reversed, with en dollars costs, and a new trial ordered. ten MULLAN and BURR, JJ., concur. Judgment reversed, with ten dollars costs, and new trial ordered. B. & S. REALTY CORPORATION, Landlord, Respondent, V. JOSEPH WALD, Tenant, Appellant. (Supreme Court, Appellate Term, First Department, February Term filed April, 1921.) Summary proceedings - when tenant not debarred from pleading defense that rent is unreasonable Laws of 1920, chaps. 944, 945. While the payment of the first month's rent of premises in the city of New York, several months after the lease was made, constitutes a ratification thereof which prevents the tenant from claiming that he executed the lease under duress, he is not, in a summary proceeding for non-payment of rent, debarred from pleading under the statute (Laws of 1920, chaps. 944, 945) the defense that the rent demanded is unreasonable and oppressive. By pleading such defense the tenant neither disaffirms his contract nor is he obliged to relinquish the benefits received thereunder, and a failure to claim the right granted to him by the statute, to continue in possession of the premises upon the payment of a reasonable rent, is not waived by his failure to avail himself of such right at the first opportunity. |