New-York tribune., 1920-11-02
nes,t l4asY Void,
Justice Holds
I'm Initial Test
Ho.chkiss Declaree Emer-
acncv Measure Unconsii-
S;.iiorai on T,v.ae Counts:
Victory for the landlords
Calls 1t Discriminatory
Urges Speedy Appeal to High
Court in Order That Status
May Be Definitely Decided

Supreme Court Justice Henry u.
IIotchkiss. in a decision handed down
late yesterday afternoon. declared the
row emergency rent laws unconstitu-
;lonal. He bases his opinion on the
three following grounds:
First. the new laws deprive the
landlords OF all remedy for reposses-
sion of their property.
Second, they are discriminatory as
between owners of old ard new
buildings.
Third, they cannot be applied to
leases made prior to September 27
last.
TIE decision was made III the case Of
Mortimer Osterweis. tenant. of 242
a ee iH4tn Street, vino Was made Il de-
fcndant in cjcctment proceedings. Tie
case came into the Supreme Court on a
demurrer entered by Osterwes to the
complaint Of Rose Hcyman, trustee
of the estate of Morris Hevman. The
decision overrules the demurrer but
gives the defendant permission to an
swer the complaint, so that the suit
may be brought to trial in open court.
Court Urges Quick Test
The defendants lease expired Sep
tember 80, but he has been holding
over. The motion before the Supreme
Court involved the constitutionality Of
Chapter 947, of the recent rent laws,
which provides that ejectments except
under certain circumstances shall not
be maintainable until November /, 1922
After reviewing the points involved,
Justice Hotchkiss in his decis. on says:
1T is OF immense Importance that,
in view of the series of so-called hous-
ing 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 important that decision Of
This motion should be made promptly,
but to do this and express my views in
this opinion is impossible.
The gist of what are strong i'm
pressions rather than mature con-
clusions is as follows:
"Fiist. the law of 1870, chapter 947.
does not apply 90 leases the terms of
which commence prior to September
27. 1920
Second, if construed so to apply, the
act, read in pari materia with the
other housing acts, would be uncorsti-
,ntlonal, because, assuming that the
leasing OF t~nements is & business
charged with j public use, ard as such
utJect to the exercise Of the police
rover, the result Of these acts is to
force upon the landlord the contnu-
: nee Of such use and to deprive him of
MS right to Withdraw his grant by
pscontnulng the use.
"While put my decision on the fore
ooing grounds. may properly add that
have grave doubts as to the consti-
tutionality Of the act in question whom
considered in the light of The legisla
ton of which It is d part, because:
First, it deprives landlords, such
as the plaintifT, Of all remedy for the
repossession of their property 1t is
not based upon any proper application
OF the doctrine of eminent domain and
cannot otherwise be sustained as q
valid exercise Of the police power.
Calls it Discrmiratory
Second. it is discriminatory because,
IS between owners of old and new
buildings, 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"
Henry X. ucyman is attorney for the
plaintiff and Lewis ". Osterweis is at
torney for the defendant.
Commenting last night on the de-
csion Of Justice Hotchkiss, Julius H.
Zioscr chairman Of the law committee
of the Real Estate Investors of New
York, Inc, declared that since the en-
actment Of the rent laws it has been
the opinion Of real estate owners that
Chapter 947 was unconstitutional.
"Ihc right of ejectment,' said Mr.
Zieser "is right that has been pos
sessed by real estate owners from time
immemorjal. That right is absolutely y
and it is so fixed in the constitution
as to expressly prohibit the Legislature
from enactlng a law contrary TO that
right.
rs has been clear to every one ia
miiar with the various phases Of thu
housing situation that the Legislature
IN the enactment of the rent laws, went
far beyond anything that has ever been
attempted in New York State.
There are other chapters Of the
rent laws not sound, but in so far as
Chapter 947 rs concerned there has
l-eVcr been any doubt in the minds OF
realty owners that this chapter must
lall. We are of the opinion that it
VIII be held unconstitutional by all
justices who have occasion to pass on
it
When Governor Smith was told of
Justice Hotchkiss's decision, he said:
II don't know anything about the
legal side oI the case. hut DO believe
tie State Of New York can exercise
It's police powers in any emergency"