Osborne Holding Co. v. Conrey

The plaintiff sues on a written lease made December 11, 1920, in and by which it leased to the defendant an apartment in its building for a term of one year and nine months, commencing January 1, 1921, and ending September 30, 1922. The lease provided for the payment of rent at the rate of $4,000 per annum for the period beginning January 1, 1921, and ending September 30, 1921, and at the rate of $5,500 per annum for the remainder of the term. This action is to recover the rent due for the months of October and November, 1921, amounting to $916.68. The defendant answered, setting up as a defense that the rent demanded is unjust, unreasonable and oppressive. A motion was made by the plaintiff that this defense be • stricken from the answer, since the defendant had lost his right to resist plaintiff’s claim upon the above stated grounds because she paid three successive months’ rent under the agreement without protest. Laws of 1920, chap. 136, § 1, as amd. by Laws of 1921, chap. 434. The court below, persuaded that the payments barred the statutory defense, granted the motion to strike out. The lease in question had two rent periods: One consisting of nine months, at the rate of $333.33 per month; and the second of a year’s duration, at the rate of $458.34 per month.. The tenant paid monthly, without complaint, the rent during the first period.

Since chapter 434 of the Laws of 1921 was operative and applicable during the last three months of the first period, the tenant would now, unquestionably, be precluded from raising the question of the *317unreasonableness of the rent if the amount to be paid continued unchanged for the remaining period of the lease. The strictly technical construction of the statute contended for by the respondent, and adopted by the court, cannot, however, in our opinion, be applied to the terms of the present lease. Where the rental sum is' unchangeable, the clear legislative mandate was that an estoppel should entail a continuance of payments; the present graduated scheme, on the other hand, raised the question of reasonableness anew as each increase took effect. When the rent was demanded for October, 1921, the tenant had her first opportunity to challenge the reasonableness of the increased sum provided for during what I have termed the second period of the lease. She is entitled to have adjudicated the controversy as to whether this higher rental is a just exaction. While, it is true, the different sums as rent are provided for in the one agreement, the tenant was in no position to make her protest against what she deemed an oppressive exaction until payment of the increase was due under the lease. The plaintiff’s theory, accepted by the court below, that there being but one agreement the tenant was obliged to raise the question of unreasonableness as to future payments, when she was asked to pay a sum she deemed reasonable, is untenable. That would require courts to assume the Talismanist’s role, and announce the prophetic instead of the declaratory, an investiture of power not yet accorded to our presently conceived, or at least approved, system of adjudication. For reasonableness is based on values and operating expenses at the time the rent is due, and the decision is effective only so long as these conditions remain static; the sum fixed as reasonable is as elastic as the conditions used as a basis of calculation. Courts are empowered to decide present or past reasonable rents, and cannot be asked 'to prophesy what would be a reasonable rent a year hence.

Order modified so as to deny that part of plaintiff’s motion for the striking out of the fifth defense, and as modified affirmed, with ten dollars costs and disbursements to the appellant.

Guy and Cohalan, JJ., concur.

Order modified and as modified affirmed.