Marcus Brown Holding Co. v. Feldman

• Decision Date: 15 December 1920
• Citation: 269 F. 306
• Parties: MARCUS BROWN HOLDING CO. v. FELDMAN et al.
• Court: U.S. District Court — Southern District of New York

269 F. 306

MARCUS BROWN HOLDING CO. v. FELDMAN et al.

United States District Court, S.D. New York.

December 15, 1920

Hearing under order to show cause, dated November 18, 1920, requiring the defendant Swann, as district attorney, to show cause why he should not be restrained pendente lite from instituting proceedings or actions of any kind against the plaintiff, its agents, etc., for failure or refusal to furnish heat, water elevator service, etc., to the other defendants; also requiring the other defendants to show why they should not be restrained from 'entering upon or continuing to occupy' the dwelling apartment described in the bill of complaint herein, or to make use of any property belonging to plaintiff without plaintiff's consent.

Plaintiff is a corporation of New Jersey; defendants citizens of New York and residents of this district. About September 30 1920, plaintiff became owner in fee of a large apartment house in this city, worth (as alleged) upwards of $1,000,000. When plaintiff acquired this building, defendants other than the district attorney, were tenants therein holding an apartment under a written lease made by plaintiff's predecessor in title on October 1, 1917, and terminating September 30, 1920, which lease contains the usual mutual covenants for quiet enjoyment and peaceable surrender. This plaintiff landlord and its predecessors in title are in legal effect one legal entity.

In March, 1920, the landlord notified the tenant defendants to surrender possession of the apartment in question at the expiration of their lease; in point of fact the landlord before giving notice, executed a new lease, taking effect at the expiration of defendants' tenancy, to other parties presumably more satisfactory to the lessor. In June, 1920 the tenant defendants advised the landlord that they were 'willing to renew the lease of apartment in your premises at a reasonable increase, to be determined by the mayor's committee.'

This was rejected, the landlord writing that it expected the tenants to 'surrender the premises on the expiration of lease as therein provided. ' At expiry the tenant defendants refused to move, and, having answered herein, we assume the truth of their pleading alleging that they now are in occupancy of the apartment aforesaid under the protection of certain statutes of the state of New York, and 'are and at all times have been ready, able, and willing to pay the fair and reasonable increase as the same may be determined by a court of competent jurisdiction.'

Plaintiff, insisting upon its right to choose its own tenants, brings this suit, alleging the unconstitutionality of the statutes under which defendants justify retention of said apartment, which statutes are (as appears by the tenant defendants' answer) chapters 942 and 947 of the Laws of New York for 1920. Plaintiff alleges, as further violating its rights in the premises, other statutes of New York, being chapters 943-945, inclusive, and chapters 948-952, inclusive, and chapters 131, 132, and 135-138, inclusive, of the Laws of 1920.

Defendant Swann, as district attorney, is sued because by chapter 131, as amended by chapter 951, there is added to the Penal Law of the state the declaration that any lessor, agent, janitor (or the like) of any building wherein lessees are, expressly or impliedly, entitled to hot or cold water, heat, light, power, elevator service, telephone, or any other service or facility, who willfully or intentionally fails to furnish the same, or who so 'interferes with the quiet enjoyment of the leased premises by such occupant, ' is guilty of a misdemeanor.

The prayer as to the tenant defendants is that they be 'enjoined and restrained from entering upon or continuing to occupy the apartment herein described or to make use of any of the property belonging to this complainant without the complainant's consent. ' As to the district attorney, the prayer is that he be enjoined from instituting any proceeding or action under the statute above alluded to or otherwise, for any failure or refusal on the part of the plaintiff to furnish the facilities above referred to to the tenant defendants or 'any other person occupying any part of the building' (belonging to plaintiff) without 'its consent or permission, and holding over against its will after October 1, 1920, under color of the statutes and laws' above referred to.

Hearing is on the bill, the answer of the tenant defendants, the affidavit, verified November 17, 1920, of Mr. Joseph A. Seidman, attorney for plaintiff, the affidavit, verified December 3, 1920, of Mr. Samuel R. Gerstein, attorney for tenant defendants, and certain public documents, viz. 'Report of the Joint Legislative Committee on Housing,' transmitted to the Legislature of New York on September 20, 1920, and the message (bearing the same date) of Governor Alfred E. Smith relative to 'housing facilities within the state and recommending legislation in reference thereto.'

It thus appears as a fact satisfactorily proven that the statutes above enumerated from chapters 942-952, inclusive (except chapter 946), commonly and collectively known as the September Housing Laws), were made laws, for the reason and in response to the demand or emergency insistently presented to the Legislature by the above-mentioned report of its own joint committee and by the Governor's message. The other statutes complained of by plaintiff are collectively known as the 'April Housing Laws.' Assuming legislative power to enact all these laws, the April statutes have been almost wholly superseded by those of September. The importance of the earlier statutes, so far as this bill is concerned, seems to be that, should the September acts be voided, argument might be made that the April acts were revived; hence complaint is made of all the housing legislation of 1920.

Joseph A. Seidman, of New York City, for plaintiff.

Francis M. Scott and I. Maurice Wormser, both of New York City, amici curiae.

Samuel R. Gerstein, of New York City, for tenant defendants.

William D. Guthrie and Julius Henry Cohen, Sp. Deputy Attys. Gen., both of New York City (Elmer G. Sammis and Bernard Hershkopf, both of New York City, of counsel), for Joint Legislative Committee on Housing.

Robert S. Johnstone, of New York City (John Caldwell Myers, of New York City, of counsel), for defendant Swann.

David L. Podell, Benjamin S. Kirsh, and Jacob Podell, all of New York City, for tenant.

Before HOUGH, Circuit Judge, and MAYER and AUGUSTUS N. HAND, District Judges, sitting pursuant to Judicial Code, Sec. 266 (Comp. St. Sec. 1243).

HOUGH Circuit Judge (after stating the facts as above).

Several objections to plaintiff's right to be heard have been insisted on and must be first considered.

The bill (it is said) sets forth several matters of a distinct and independent nature against several defendants and is therefore multifarious. In our opinion this is true, but it is also true that the twenty-sixth Supreme Court rule in equity (201 F. v, 118 C.C.A. v) has rendered that defense unavailable, whenever, in the opinion of the court, 'sufficient grounds appear for uniting the causes of action in order to permit the convenient administration of justice. ' The rule has been thus interpreted in this district since its promulgation.

And see Crawford v. Washington, etc., Co., 233 F. 966, 147 C.C.A. 635; Eclipse Co. v. Harley (D.C.) 244 F. 463, United States v. New England, etc., Exchange (D.C.) 258 F. 732.

The separate matters in this bill are two-- one a complete severable cause of action against the district attorney; the other (equally complete) against the tenant defendants-- yet plainly the constitutionality or the reverse of any action by the district attorney depends wholly upon the constitutionality of these housing statutes. The rights of occupiers against landlords will, as to the services referred to in chapter 951, depend upon the constitutionality of the statutes permitting them to remain where they are not wanted. Consequently the connection between the rights of the tenant defendants and those of the district attorney is so intimate that both rights grow out of the same mass of legislation, and they should be tested together. This case affords a good example of the wisdom of abrogating the strict rule regarding multifarious pleading.

It is further said that the bill as affecting the tenant defendants is no more than an endeavor to bring an ejectment suit in equity. Such efforts have often been made and always failed (Smyth v. New Orleans, etc., Co., 141 U.S. 656, 12 Sup.Ct. 113, 35 L.Ed. 891), and this bill suggests no circumstances under which this court of equity would be empowered to issue mandatory injunctions which would be the equivalents of writs of possession; yet this is the futile prayer of the bill.

But under modern procedure the dismissal of the bill does not necessarily follow. On the contrary, the court is required by Act March 3, 1915, 38 Stat. 956 (Comp. St. Sec. 1251a-1251c), to transfer any action wrongly brought in equity to the law side, and grant a repleader.

This plaintiff might, however, have brought an action for the recovery of possession of real property (ejectment) at law and in this court. No state statute can define or limit the jurisdiction of this court; and this is true, although it be assumed that the defenses in ejectment authorized by the statutes enumerated would be as available to defendants in the United States courts sitting in New York as they are in the tribunals of the state.

It is next objected that the bill cannot stand as against the district attorney, because the question must be raised after indictment, and in the criminal court. Considering the actual sequence of events in Ex...