Mandel v. Gottfried — 116 N.Y.S. 667

Majority

p. 667

MANDEL et al. v. GOTTFRIED et al.

(Supreme Court, Appellate Term.

May 6, 1909.)

Headnote

1. Landlord and Tenant (§ 295^[1] )—Statutes—Retroactive Operation—Summary Proceedings—Pre-Existing Rights.

Labor Law (Laws 1906, p. 303, c. 178, as amended by Laws 1908, p. 1217, c. 426) § 94, provides that, whenever by the terms of a lease the lessee shall have agreed to' carry out certain provisions of the law, his failure or refusal to do so shall be a cause for dispossessing him by summary proceedings, as provided by the Code of Civil Procedure. Held, that such section only creates a new remedy for a pre-existing right, and hence it was applicable to a lease which was made prior to the amendment.

[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 295.*]

2. Courts (§ 188*)—Municipal Court—Summary Proceedings—Jurisdiction.

Labor Law (Laws 1906, p. 303, c. 178, as amended by Laws 1908, "p. 1217, c. 426) § 94, provides that, when any lessee shall have agreed to perform provisions of the law, his failure to do so shall be a cause for dispossession by summary proceedings, as provided by the Code of Civil Procedure. Held that, where a lessee had so agreed and refused, the Municipal Court was given jurisdiction of summary proceedings by the landlord to recover possession by Code Civ. Proc. § 2234.

[Ed. Note.—For other cases, see Courts, Dec. Dig. § 188.*]

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Max Mandel and another against Elias Gottfried, impleaded with others as undertenants, to recover possession of certain premises. From a final order in favor of plaintiffs Gottfried appeals.

Affirmed.

p. 668

Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.

Henry Weismann, for appellant.

Samuel Plumer, for respondent's.

The landlords herein have sought to regain possession of the premises from the tenant by summary proceedings brought under section 94 of the labor law (Laws 1906, p. 303, c. 178, as amended by Laws 1908, p. 1217, c. 426), providing that whenever, by the terms of a lease, any lessee shall have agreed to carry out certain provisions of the labor law, the failure or refusal so to do shall be a cause for dispossessing said tenant by summary proceedings to recover real property as provided in the Code of Civil Procedure. In this case the lessee had so agreed, and by virtue of section 2234 of the Code the Municipal Court had jurisdiction of the proceeding.

The tenant also claims that, since this lease was made before section 94 of the labor law was amended to cover this case, the statute does not apply to this contract. The statute, however, does not give the landlords any new rights, simply a new remedy. The lease itself provides that, for a breach of the covenant to comply with the order of any state department, the landlords shall have the right to re-enter by summary proceedings. Until this statute was passed they were unable to do so, because there was no provision of law under, which such proceedings could be brought; but it is evident that, when the remedy is provided, it will be effective in regard to a right previously expressly given by contract.

The final order appealed from is affirmed, with costs to respondents.