New-York tribune., 1920-11-14
Federal Court
Disn1isses Rent
Law Test Suit
Request for Injunction to
Restrain Swami From En-
forcing Statutes Held Be-
yond Its Jurisdiction
Judge Manton Dissents
Says Threatened Prosecu-
tion Is Sufficient to Ask
for Equitable Relief

The case - the Marcus Brown Hold
ing Company. New Jersey corpora
ticN. against Arnold Pollak. tenant.
and Edward Swami, as District At
;ornev, which was argued October 26
oefcrc Judges Manton, Mack and Hand
in the United States District Court, Tor
the purpose cf testing the constitu-
tionaity of the rent laws Of October,
1920. was dismissed yesterday because
it was not within the jurisdiction of
the court
Poilak had lease from the COM
plainant's assignor on an apartment
in 215 West Ninety-hrst Street. His
annual rental was $1,000, commencing
with the 1st day of October, 1918, and
terminating or September 0, 1920. He
alleged that prior 10 the expiration of
the leasehold. without notice to him,
the landlord of the property executed
lease to a third person at rental
Of $4,000. He said he had not been
given an opportunity to renew his lease
at the increased rental His efforts
to obtain other Accommodations, he
said, were futile He invoked the new
rent laws to prevent his custer from
the apartment upon his offer o. pay
ment OF a reasonable rental.
The Marcus Brown Company snid the
legislation under which Polak sought
protection was constitutional, and
while seeking to enjoin Polak from
occupying the premises also sought to
restrain Mr.. Swami from protecting
Pollak
Two Opinions Filed
Two opinions were fled IN the ease
The main decision was written by
Judge Hand and concurred in by Judge
Mack This decision dismissed the mo-
ion to the effect that the threatened
Pollak as q trespasser and the District
Attorney from enforcing the rent laws
Judge Manton filed dissenting opin-
ION to the effect that the Threatened
prosecution for continuous acts which
would constitute crimes under the crim-
lnal statutes, was sufficient to ask for
equitable relief if the statutes be held
TO be titutional. However, in
view of the authorities in the Supreme
Court, is well as in the Circuit Court.
OF the principles of jurisdiction IN
volyed, he said he felt constrained to
dissent
At the hearing of the case the de-
PENDANTS asked for the dismissal of the
case because the amount in controversy
did net equal more than $4,000 above
interests and costs.
Judge Hand said: I'm no aspect
does II seem to US that the cause is
within our Jurisdiction. As there can
be no amendment which will cure the
defect, the dismissal will be without
any righl to plead over
Question of Constitutionality
The motion to dismiss necessarily
would raise the question Of the con-
stitutionality OF the emergency legis-
lation, even though we were to hold
that there was no jurisdiction ir
equity. Nor could the bill be reframed
under Section 274A Of the Judicisl
code and, at last as to Pollak, proceed
as an action in ejectment.
I'VE should, therefore, feel obliged
TO pass on the merits OF the contention
We're it not fos a defect, absolute SO far
as We can sec, in our substantive
jurisdiction, which is that the amount
Ia controversy does not equal $4,000
above interests and costs. The formal
allegation 20 that, effect does not, of
course, bind us when the bill Of decla-
ration contradcts it,
There is, possibly, at stake in this
controversy nothing more than the
brown Company's loss by Pollak's con-
tinued occupation for twenty five
months; because, after that time, the
moratorium, so to speak, expires, and
all landlords may Renter.
Takes Up Swanns Case
The Brown Company itself asserts
that the value of the term for that
time will be $4,000 yearly. If the rea-
sonable rent which Pollak must pay is
not less than 81 500 the plaintiffs loss
will be s1,45s.33. 1t is not and prob
ably cannot be alleged that the reason
able rent was less, and, in any case,
Pollak is content to 60 on at the old
will also lose rent under the lease to
the thild person for eleven months
after November ], 1922. the answer is
that no one can say that the possession
which the plaintiff will have, will not
be worth as much as $4,000 at that
time.
ITO this the plaintiff answers that l.
is the value of the right which it seeks
TO protect, which controls. That rule
here too. But the right to be pro-
tectcd is not the fee of the apartment.
but possession during the operation of
the statute.
"As to the proposed trespass Of Mr..
Swami, there are two answers: First,
1T does not appear that Mr.. Swami has
threatened six prosecutions, or, indeed
any 'nliie more than single one. Sec
ond, in any event, the proposed prose
cuton is confessedly only to prevent
;he plaintiff from disturbing Pollak
and in protecting Polak's holding over
"The plaintiffs right to be protected
temains az before, except the posses
SION. which he must leave in Pollaks s
hands for twenty-five months"
At the argument J. A. Seldman rep
resented the Brown Holding Company
David Podell the defendant Pollal and
John Caldwell Myers the defendant
Swami. Samuel A. Berger arNcared in
behalf of Attorney Genera, Me"ton,