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Second Department, December, 1920.

[Vol. 194. proceedings to dispossess tenants holding over after the expiration of their terms, there remains for determination only this question, viz.: Has the relator been deprived thereby of its property without due process of law? This question, for convenience of discussion, may be divided into two parts: First, has the relator been deprived of its property? and, second, if so, has it been by due process of law? A law passed in the exercise of the police power is due process of law, and the second question, therefore, resolves itself to the consideration of the police power as a justification for depriving the relator of its property.

Proceeding, therefore, in order, I will first consider whether the relator has been deprived of its property. The relator is the owner of real property in the city of New York. On the 7th of May, 1920, by a final order made by a court of competent jurisdiction, it was adjudged to be entitled to immediate possession. In such proceeding no further judicial act was to be performed. It was a final adjudication between the relator, as landlord, and its tenant, which established their respective rights and duties with reference to the possession of the premises. Thereafter was enacted chapter 942 of the Laws of 1920, which prohibited the issuance, until November 1, 1922, of the warrant to execute such final order. The actual, practical result is that the tenant is given the right to occupy the relator's property for upwards of two years. For two years, or for such shorter time as the tenant may choose to occupy it, the relator is deprived of its property. This is not like the cases cited by the presiding justice, in which there were stays of execution on judgments for money. In such cases the conditions of the parties were unchanged by the stay, and interest compensated for delay. This law does much more. It operates on future conditions and practically carves out of the landlord's property an estate for years which it bestows on the tenant.

But it is said that the only effect of the law in question is to deprive the relator of a remedy given by statute. As an abstract proposition, I do not question the power of the Legislature to alter or abolish the remedy afforded by statutory summary proceedings. But we are not discussing abstract propositions, and should confine ourselves to the case before

App. Div.]

Second Department, December, 1920.

us. The relator had, before the September laws were passed, obtained a final order adjudging to it the possession of its property. To enforce this right, its sole remedy was the warrant, the issuance of which follows of course as a ministerial act. This remedy the statute took away. Undoubtedly, if there were other means of regaining possession, open in the law, it would not be deprived of its property, for it could secure the property by resort to such other means. But the final order conclusively adjudicated the question. (Reich v. Cochran, 151 N. Y. 122.) In the face of such adjudication, no other action for the same relief can be maintained. If the relator should bring an action of ejectment, which concededly is the only other possible remedy, the final order could be pleaded as a bar. Two judgments cannot be obtained on the same cause of action. The right is merged in the first judgment and cannot again be the basis of another action. It follows that as to the relator, which has obtained the final order, the statute deprives it for two years of all remedy for obtaining possession of its property. (Black Judg. chap. 19, § 674; Caylus v. New York, Kingston & Syracuse R. R. Co., 76 N. Y. 609.)

This argument does not need the support of chapter 947 of the Laws of 1920,* which took away the remedy by ejectment also. As to that, it is sufficient to say that chapters 942 and 947 were passed at the same extraordinary session of the Legislature, where by virtue of the Constitution (Art. 4, § 4), the Legislature was limited by the message of the Governor to passing upon the subject of the housing situation. The laws so passed deprived, by their express terms, until November 1, 1922, all landlords within the territory specified, which includes the city of New York, of the aid of the courts in obtaining possession of their property from hold-over tenants. I cannot perceive how we are justified in assuming the unconstitutionality of chapter 947, in order to sustain chapter 942. But as my associates claim that chapter 947 is not in any way before us, I rest my argument on the proposition first stated, that the cause of action to oust the tenant was merged in the final order, and cannot be the basis of any other relief, and,

* Adding to Code Civ. Proc. § 1531a.— [REP.

Second Department, December, 1920.

[Vol. 194.

therefore, the law which deprived the relator of the power and right of enforcing the final order for two years deprived it of its property for that length of time.

Assuming, then, that the relator has been deprived of its property, we reach the question whether it was by due process of law, or, what is the same thing, in the proper exercise of the police power. The power to legislate in the interest of the public health, safety, morals and general welfare is essential to every government, and is called the police power. The constitutional guaranties of life, liberty and property were not meant to nullify this power nor to limit its just operation. Neither can the police power be exercised so as essentially to impair these guaranties. The police power and the Constitution are like adjoining fields of law. There is a boundary between them, which cannot be defined in advance, for it shifts with the necessities of the situation, but as each question arises it is the duty of the court to determine in which field it lies. The constitutional provision* against depriving any person of his property without due process of law applies as well to legislative as to judicial acts; in fact, it limits the power of every department of the government, whether executive, legislative or judicial. As was said by Judge ANDREWs in Bertholf v. O'Reilly (74 N. Y. 509, 519): "In judicial proceedings, due process of law requires notice, hearing and judgment; in legislative proceedings, conformity to the settled maxims of free governments, observance of constitutional restraints and requirements, and an omission to exercise powers appertaining to the judicial or executive departments." It is the duty of the courts, who are sworn to support the Constitution to decide, with reference to the special facts before them, whether the constitutional safeguards have been impaired by legislation under the guise of the police power, and there is no question which has occasioned so many well-considered judgments of courts of last resort or so much discussion among jurists.

Any law which limits the rights of an owner to use his own property, pro tanto deprives him of the property. Never

* See U. S. Const. 14th Amendment, § 1; State Const. art. 1, § 6.[REP.

App. Div.]
Second Department, December, 1920.

theless there is no doubt that the Legislature may, in the exercise of the police power, regulate and limit the use of land to the injury of the owner. This is exemplified in our building laws, our health laws, our factory laws, our tenement house laws, and in our so-called zoning law. (Health Department v. Rector, etc., 145 N. Y. 32; Hadacheck v. Los Angeles, 239 U. S. 394; Welch v. Swasey, 214 id. 91; St. Louis Poster Adv. Co. v. St. Louis, 249 id. 269; Lincoln Trust Co. v. Williams Building Corp., 229 N. Y. 313.) It is manifest that in all of these cases the owners have been deprived of some use of their real property by the exercise of the police power of the State. The application of this power varies with changing social and economic conditions. But it is always a question for the courts whether, in the exercise of such police power, the Legislature has infringed constitutional property rights. The province and duty of the courts cannot, it seems to me, be better expressed than in the words of Mr. Justice PECKHAM in Welch v. Swasey (214 U. S. 105): "The statutes have been passed under the exercise of so-called police power, and they must have some fair tendency to accomplish, or aid in the accomplishment of some purpose, for which the Legislature may use the power. If the statutes are not of that kind, then their passage cannot be justified under that power. These principles have been so frequently decided as not to require the citation of many authorities. If the means employed, pursuant to the statute, have no real, substantial relation to a public object which government can accomplish; if the statutes are arbitrary and unreasonable and beyond the necessities of the case; the courts will declare their invalidity." It is by this rule that the question whether the constitutional rights of the relator to its property have been impaired by the operation of the law above cited, must be decided.

We are bound by the judgment of the Legislature to recognize that in the district affected by these laws a condition exists which calls for legislation to correct it. The construction of new dwelling house accommodations has been interrupted by the war. The population has steadily increased and is being continually reinforced by immigrants. The relation of the supply of housing accommodations to the demand has been interrupted, to the serious injury of the public. One

Second Department, December, 1920.

[Vol. 194. subject for relief is this shortage of dwellings, and there can be no doubt that the Legislature may enact apt laws to correct this situation. In fact, some of the twelve laws passed at the extraordinary session seem to have direct relation to this subject and are calculated to re-establish the proper relation between the supply and demand of housing accommodations. Such, for instance, are chapters 946 and 949,* which authorize the investment of certain public funds in bonds of the I and Bank of the State of New York, and which empower the city authorities to exempt from taxation, for a limited time and for local purposes, all buildings of a certain character to be constructed for dwelling purposes within a time specified.

But it is not perceived how the operation of chapter 942, under which the relator claims that it has been deprived of its property, will add one square foot to the supply of dwelling accommodations, or will decrease in any respect whatever the demand therefor. If the purpose and object of the Legislature is solely to relieve the housing situation, this act, applying the test quoted from Mr. Justice PECKHAM, has no real, substantial relation to this public object. Six of the laws passed at the extraordinary session, including.chapter 942, affect the rentals of property only, and an increase or decrease of rentals has no necessary and proper relation to the question of the sufficiency of the housing accommodations. It is not permissible to say that a landlord will dispossess his hold-over tenants for the purpose of holding the property vacant. His purpose is to increase the rent to the incoming tenant. While the price of building material, the cost of labor, the amount of taxes and the expense of maintenance are increasing, the tendency of these laws is to prevent that increase from finding its expression in the increase of the rental value of property. I, therefore, conclude that this law has no reasonable tendency to correct the condition of housing shortage.

But the problem is not yet solved. It cannot be said that the sole purpose of the laws was to increase the housing accommodations. One manifest purpose was to regulate the amount of rentals. I am not prepared to say that the regulation of rentals in a city like New York, where it is a condition

* Adding to Banking Law, § 149, and to Tax Law, § 4b.- [REP.

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