The New York herald. [volume] (New York, N.Y.) 1920-1924, 1920-11-02
NEW DECISION GIVEN
AGAINST RENT LAW
Justice H6tchkiss Doubts
COnstitutiOnality of Act
as Discriminatory.
URGES AN EARLY APPEAL
Tenants in Another Action in
Supreme Court Gain Point
From Landlord.

The emergency rent laws passed by
the Legislature last September are I'M
constitutional, according to decision
rendered yesterday by Justice Henry ID.
Hotchkiss in the Supreme Court JUS
tice Hotchlxiss accompanied his decision
with statement that the matter Is OF
such Importance it should be passed on
to the Court of Appeals as soon as pos
sible. Several decisions already have
been handed down holding the laws con-
stitutional.
The decision was made against Morti-
mer Osterweis, tenant, who was named
as defendant in ejectment proceedings
on the complaint of Rose Heyman, land
lord. Mrs. Heyman sought to eject
Osterweis from an apartment at 242
West 104th street. Justice Hotchkiss
overruled the demurrer, granting $40
costs to the plaintiff, but gave the de-
PENDANT permission to answer the COM
plant so that the suit may be tried in
open court.
The text of the decision follows:
plaintiff sues for ejectment. The
defendant demurs for failure to state
cause of action and the plaintiff moves
for judgment on the pleadngs. The de-
PENDANT was the plaintiffs tenant, Under
the terms of the lease his tenancy ex-
DlreQ september oV, IJAO, Jul nC HUNS
over
"The motion involved the application
and validity of the laws of 1920. chapter
947 which became a law on September
81 and which provides that ejectment in
certain localities and except under GER
tain circumstances, shall not. be main
tainable until November 1. 1922.
'It is of immense Importance that. in
view of the series of so-called housing
laws recently passed. and of which the
above is one, the entire matter should be
passed upon by the court of last resort
as soon as possible. 1t is therefore i'm
portant that decision of this motion
should be promptly made. but to do this
and express my views in this opinion Is
impossible.
1.-THE gist OF what are strong impress
sions rather than mature conclusions is
as follows:
First, the laws of 1920, chapter 947,
do not apply to leases the terms of
which commence prior to September 81.
1920.
Second, if construed to so apply, the
act, read in pari materia. with the other
housing acts. would be unconstitutional
because, assuming that the leasing Of
tenements is a business. charged with
public use and as such subject to the
exercise of the police power, the result
of these acts is to force upon the land
lord the continuance of such use and to
deprive him of his right to Withdraw
his grant by disseminating the use.' See
Mum VS.. Illinois, "a u s., 1926.
while | put my decision on the fore
going grounds, / may properly add that
I have grave doubts as to the constitu-
tionality Of the act in question when
considered in the light of the legisla-
ton OF which ii is part, because
First. il deprives landlords such as
the plpintff of al remedy for the re-
PC $50 sion of their property. 1t is not
b sed upon any proper application of
the doctrine of eminent domain and can
not otherwise be sustained as a valid
exercise Of tie police power.
Second. It Is discriminatory. because,
as b tween owners or old and new build
fngS and as between owners who seek
to regain possession of premises for
their personal use and those who seek
possession for other purposes. the act
denies the equal protection of the laws
"The motion of the plaintiff for judg-
ment against the defendant on the plead
ings is granted with $40 costs. with leave
to answer. Settle order on notice.
Tenants Win This Suit.
Justice George V. Mullan handed down
n decision denying dispossess warrants
against Solomon Well and nine other
tenants occupying apartments at 10th
street and Audubon avenue. TIE leases
expired September 30. but the tenants
refused to move, relying on the new rent
laws.
Justice Mullan takes It for granted
that the rent laws are constitutional and
that landlords may not disposses their
tenants who still occupy premises under
follower proceedings. In denying the
motion for a preliminary injunction the
court imposed no costs on either party
to the case because 1t is to be carried
to the Appellate Division.
Justice Mullan, in his decision. said In
part:
1.-THE constitutionality of the Sep
TENDER housing laws is not passed upon
by the court, since the plaintiff predi-
Gates its claim of right to come into a
court of equity upon the assumption that
the housing laws which suspended the
operation of the remedy of ejectment and
summary proceedings are valid. since II
plaintiff admitted their invalidty II
would have no standing at all to claim
equitable relief"