McLeod v. POMERANC

Citation203 Misc. 250
PartiesMalcolm W. McLeod et al., Respondents,<BR>v.<BR>Dora Pomeranc, Appellant.
Decision Date13 November 1952
CourtUnited States State Supreme Court (New York)

Murray Rafsky for appellant.

Martin Green for respondents.

HOFSTADTER and HECHT, JJ., concur in Per Curiam memorandum; SCHREIBER, J., dissents in opinion.

Per Curiam.

A statutory tenant who surrenders possession in reliance on fraudulent representations of his landlord regarding his intended use of the premises may not maintain a common-law action for fraud (Rosner v. Textile Binding & Trimming Co., 300 N.Y. 319).

The order should be reversed, with $10 costs and disbursements, and motion granted.

SCHREIBER, J. (dissenting).

The complaint alleges that the defendant induced plaintiffs, statutory tenants of an apartment, to vacate in reliance on the false representations that defendant intended to perform necessary repairs and that plaintiffs could return after the completion of the repairs. The pleading charges that defendant did not intend to make repairs and that she rented the apartment to another after the plaintiffs had surrendered possession in the belief that they could return when the repairs were finished. In my opinion a good cause of action for common-law fraud and deceit is made out.

The case of Rosner v. Textile Binding & Trimming Co. (300 N.Y. 319) is not controlling authority to the contrary. In that case the fraud charged in the second cause of action was that the defendant had falsely represented to the plaintiff that he wanted the premises for his own use. The emergency rent statutes, which had created the statutory tenancy, had also provided a remedy to a tenant evicted by a landlord claiming that he was seeking possession in good faith for his immediate and personal use, viz., a cause of action for damages in the event that the landlord should fail to occupy the space within thirty days or should lease it to another within a year after the dispossession. That remedy was held to be the exclusive redress of a tenant in a case where the landlord claims possession for his own use (in addition, of course, to the tenant's right to contest the landlord's good faith in a summary proceeding). It does not necessarily follow that a tenant who is deprived of his statutory tenancy by fraud or other wrongful act of the landlord, without any claim on the landlord's part that he desires possession for his own use, possesses no cause of action for such fraud or other wrongful act. Such a holding would leave the tenant without any remedy or redress whatever for a common-law tort of the landlord.

The case of Schwartz v. Sterling Drug (300 N.Y. 493) is distinguishable in that the acts there complained of did not constitute a common-law wrong such as fraud and deceit, breach of contract, etc., and no remedy had been given by statute for the acts complained of. Nor are the decisions in David v. Fayman (298 N.Y. 669) and in Rosenbluth v. Sackadorf (298 N.Y. 761), cited in Rosner v. Textile Binding & Trimming Co....

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