Misc.] Appellate Term, Second Department, May, 1921.

DORA NEEDELMAN, Landlord-Respondent, v. MORRIS LEVINE, Tenant-Appellant.

(Supreme Court, Appellate Term, Second Department, April Term - Filed May, 1921.)

Summary proceedings — non-payment of rent-when court has power to adjudicate reasonable amount of rent-landlord and tenant statutes Code Civ. Pro. §§ 2231, 2244.

Where the petition in a summary proceeding under section 2231 of the Code of Civil Procedure as amended by chapter 945 of the Laws of 1920, for nonpayment of rent, alleges that the rent involved is no greater than the amount for which the tenant was liable for the month next preceding his default, and the tenant pleads that the rent demanded is unjust and unreasonable and that the agreement, therefore, is oppressive, the court, upon findings that such rent is excessive, has power under section 2244 of the Code of Civil Procedure, as amended by chapter 137 of the Laws of 1920, to adjudicate what is the reasonable amount of rent.

APPEAL by the tenant from a final order entered in the office of the clerk of the seventh district Municipal Court of the city of New York, borough of Brooklyn, in a summary proceeding for nonpayment of rent.

Emanuel Mehl, for appellant.

Respondent in person.

MANNING, J. This is a proceeding brought by the landlord to recover possession of premises. The petition alleges a hiring for the term of one month and monthly only; an agreement on the part of the tenant to pay the landlord the sum of thirty-five dollars monthly in advance; a default in payment of said rent; and it further alleges that the rent of the premises involved is no greater than the amount for which the

Appellate Term, Second Department, May, 1921. [Vol. 115.

tenant was liable for the month preceding the said default. The proceeding therefore was brought under section 2231 of the Code as amended by chapter 945 of the Laws of 1920. Under that statute the tenant pleaded the defense that the rent mentioned in the petition is unjust and unreasonable, and that the agreement under which the same is sought to be recovered is oppressive. The landlord then within five days of the filing of the answer, filed a bill of particulars, as prescribed by chapter 945 of the Laws of 1920. After the trial the trial justice found that the rent reserved in the agreement was excessive, and that the reasonable rent for such premises was the sum of twenty-five dollars a month instead of thirty-five dollars as agreed.

On appeal the tenant challenges the power of the court in such a special proceeding to adjudicate what is the reasonable amount of rent. It is true that there is no express delegation of power in chapter 945 of the Laws of 1920 giving the trial justice the right in express terms to decide what is the reasonable amount of rent. Such a power is delegated in chapter 944, which relates to actions to recover for rent only. However, chapter 132 of the Laws of 1920 amended section 2244 of the Code of Civil Procedure to read as follows:

"SECTION 1. Section twenty-two hundred and forty-four of the code of civil procedure is hereby amended to read as follows:

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"§ 2244. Answer. At the time when the precept is returnable without waiting as prescribed in an action before a justice of the peace, or in a district court in the city of New York, the person to whom it is directed or his landlord, or any person in possession or claiming possession of premises, or a part thereof, may answer, orally or in writing, denying generally the allegations, or specifically any material allegation of the petition, or setting forth a statement of any new

Misc.] Appellate Term, Second Department, May, 1921.

matter constituting a legal or equitable defence, or counterclaim. Such defence or counterclaim may be set up and established in like manner as though the claim for rent in such proceeding was the subject of an action. If the court finds that a defence or counterclaim has been established in whole or in part, it shall, upon rendering a final order, determine the amount of rent due to the petitioner or make such other proper disposition as shall determine the rights of the parties, and may give affirmative judgment for the amount found to be due on the counterclaim. If such answer be oral the substance thereof shall be endorsed upon the petition.

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"§ 2. This act shall take effect immediately."

Under this statute the court found that the tenant's defense of unreasonableness was sustained. The court then adjudicated that twenty-five dollars was a reasonable amount of rent for the premises in question. We think the court had this power under the section above quoted, and more especially under that part of the statute which reads as follows: "If the court finds that a defence or counterclaim has been established in whole or in part, it shall, upon rendering a final order, determine the amount of rent due to the petitioner or make such other proper disposition as shall determine the rights of the parties."

An adjudication that twenty-five dollars was a reasonable rent was a proper disposition of the issue that determined the rights of the parties.

KELBY and CROPSEY, JJ., concur.

Final order affirmed, without costs.

Supreme Court, May, 1921.

[Vol. 115.

DORETHEA S. POETZSCH and FRIEDA H. S. FLEGE, Plaintiffs, v. MARTIN MAYER and KATHARINA Mayer, his Wife, Defendants.

(Supreme Court, New York Special Term, May, 1921.)

Vendor and purchaser — title — when encroachments do not make title unmarketable tax sales - easements.

Specific performance-action to compel-title-when plaintiff entitled to judgment.

The fact that the walls of a building which encroaches upon adjoining premises may remain undisturbed so long as the building, which had been erected over fifty years stands, does not make the title unmarketable.

An exception to taking title arising to a great extent from the difference of opinion of surveyors as to the location of ancient monuments, is of minor importance and in no way affects the marketability of the title to premises located in the older sections of the city of New York.

Tax sales invest the purchaser with only that title which the owner of the property had and the owner of an easement therein which was lawfully acquired prior to the levying of the tax under which the tax sales were made, is not divested of his property right in the easement.

In an action to compel specific performance of a land contract, it appeared that the premises adjoining on the south, and on which the premises in suit encroached eight and one-half inches, had been used for over a hundred and twenty years as an open alleyway and drive, and that the purchasers of the lots bounding thereon and their grantees have an easement therein. It further appeared that, although prior to 1893 the alley was not assessed by the city of New York, it was taxed from that year to 1915, when the assessment thereof ceased, and though it was sold several times for unpaid taxes no action to foreclose the tax liens had been brought. Held, that the purchaser at either of the tax sales took the title burdened with the easement of the purchasers of the lots adjoining the alley and that the encroachment complained of in no sense makes the title unmarketable, and plaintiff is entitled to judgment.

ACTION for specific performance of a contract for the sale of real estate.

Misc.]

Supreme Court, May, 1921.

Darwin J. Meserole, for plaintiff.

Charles W. Walter, for defendant.

COHALAN, J. This action is one for the specific performance of a contract for the sale of real estate situated in the county of New York. On the day and hour set for the closing of the title and delivery of the deed the defendants rejected the title on the ground that the same was unmarketable because of certain encroachments on adjoining properties. The title company examining the title raised six survey exceptions. The second and fourth exceptions do not make the title unmarketable. It appears from these exceptions that the walls of the premises in the instant case encroach upon the premises adjoining on the east and north. These walls have been erected for over fifty years and may remain undisturbed so long as the building stands. The third and sixth exceptions are such as are frequently found to exist in nearly all premises located in the older sections of our city and arise to a great extent from the differences of opinion of surveyors as to the location of ancient monuments. These exceptions are of minor importance and in no way affect the marketability of the title. Under exception one it appears that the southerly walls of the premises in question encroach eight and one-half inches on the premises adjoining on the south. This exception standing alone would not make the title unmarketable, for the same reasons that are given under exceptions two and four above, but under this exception we are faced with an additional difficulty. The premises adjoining on the south and on which the encroachment is made have for over 120 years been used as an open alleyway and drive. Prior to 1799 the premises adjoining this alley, together with the alley, were owned by one Sharpless, who laid out this alley and sold the lots