Tartaglia v. McLaughlin

• Decision Date: 20 May 1948
• Citation: 79 N.E.2d 809,297 N.Y. 419
• Parties: TARTAGLIA et al. v. McLAUGHLIN et al.
• Court: New York Court of Appeals Court of Appeals

297 N.Y. 419

79 N.E.2d 809

TARTAGLIA et al.

v.McLAUGHLIN et al.

Court of Appeals of New York.

May 20, 1948.

Appeal from Supreme Court, Appellate Division, Second Department.

Proceeding in the matter of the Application of Albert Tartaglia and Philomena Tartaglia under the Civil Practice Act, s 1283 et seq., against the Honorable Harold J. McLaughlin, justice of the Municipal Court of the City of New York, Samuel Perlman, clerk of the court, and another for an order directing respondents to issue an order of eviction, wherein respondents interposed a cross-motion to dismiss. From an order of the Appellate Division of Supreme Court in the Second Judicial Department, 273 App.Div. 821, 76 N.Y.S.2d 305, entered January 26, 1948, which unanimously affirmed an order of the Supreme Court at Special Term, Steinbrink, J., 190 Misc. 266, 77 N.Y.S.2d 31, entered in Kings County, granting a motion for an order directing respondents to issue a warrant for eviction of a tenant of premises of 125 Berkeley Place, Borough of Brooklyn, in the City of New York, the respondents appeal by permission of the Appellate Division.

Orders reversed and petition dismissed. John P. McGrath, Corporation Counsel, of New York City (Stanley Buchsbaum, Seymour B. Quel, William L. Messing and David A. Stienbock, all of New York City, of counsel), for appellant.

Arthur Cooperman, of Brooklyn, for respondents.

LOUGHRAN, Chief Judge.

As landlords of an apartment property in Brooklyn, the petitioners demand an order for a warrant whereby the tenants of the premises will be dispossessed therefrom. One of the two defendants is a Justice of the MunicipalCourt of The City of New York and the other is the clerk of that tribunal. For the sake of convenience, we shall speak of the petitioners as the landlords and of the defendants as the Municipal Court.

Having obtained a then necessary eviction certificate from the Rent Control Division of the Federal Office of Price Administration, the landlords, on March 11, 1947, instituted in the Municipal Court a summary proceeding to recover possession of the property in question. Though the final order made in that proceeding ran against the tenants, issuance of a warrant to dispossess them was immediately stayed and the landlords were thereafter required to show cause on September 18, 1947, why a further stay should not be granted. Before that date came round however, the City of New York enacted an emergency local law (Local Laws, 1947, No. 66, of City of New York) barring the removal of apartment tenants at any time before September 30, 1948, except for nonpayment of rent, unless a local body the Temporary City Housing Rent Commission should in a particular case certify the existence of one or more other specific grounds for eviction. (Administrative Code of the City of New York, s U41-7.0.) This local law was made applicable ‘to all pending and future eviction proceedings'. (Subd. o.) Accordingly, on the return of the above-mentioned order to show cause on September 18, 1947, a warrant of eviction was again withheld this time until October 11, 1947 by an order in which the Municipal Court also called upon the landlords to obtain in the meantime an eviction certificate from the Temporary City Housing Rent Commission under the Local law. Upon their failure to comply with that order, the landlords were dismissed by the Municipal Court and they then brought in the Supreme Court this article 78 proceeding to compel issuance of the warrant of eviction which the Municipal Court had denied them.

On the strength of the prohibition against local legislation that would change or supersede or be inconsistent with an act of the Legislature (N.Y.Const. art. IX, s 12; City Home Rule Law, s 11, subd. 2), Special Term nullified the local law for incompatibility with the long-existing statute which in all courts of record in this State regulates the prosecution of summary proceedings to recover possession of real property (Civil Practice Act, art. 83). The Appellate Division affirmed that declaration of the right of the landlords to a warrant ousting their tenants. But the decision so made by the courts below soon became of no more than secondary importance, because the Legislature thereupon ‘legalized and validated’ the local law (and other related local laws) by enacting a statute (L.1948, ch. 4) which says: ‘Notwithstanding any defect, irregularity or omission of any lawful requirement or lack of statutory authority, all acts and proceedings of the local legislative body, the board of estimate and the mayor of the city of New York in enacting local law number fifty-four, local law number sixty-six, local law number sixty-seven, local law number sixty-eight, local law number seventy-three and local law number eighty of the local laws of the city of New York for the year nineteen hundred forty-seven, and all of the provisions of such local laws are hereby legalized and validated. Such local laws shall be deemed effectual as of the date when such local laws purported to take effectand all acts authorized thereby are hereby legalized and confirmed.’

All other things being in order, this curative statute may be given effect on this appeal (see Robinson v. Robins Dry Dock & Repair Co., 238 N.Y. 271, 281, 144 N.E. 579, 582, 36 A.L.R. 1310;People ex rel. Clark v. Gilchrist, 243 N.Y. 173, 180, 153 N.E. 39, 40). When that statute went into effect on February 3, 1948, the summary proceeding which long theretofore had been instituted by the landlords in the Municipal Court was still pending within the meaning of the local law, for no warrant was ever issued in that proceeding, though a final order in favor of the landlords had been entered therein (cf. People ex rel. Rayland Realty Co. v. Fagan, 194 App.Div. 185, 186 N.Y.S. 23, affirmed 230 N.Y. 653, 130 N.E. 931;Matter of Cohen v. Starke, 269 App.Div. 256, 55 N.Y.S.2d 337). Therefore, we address ourselves at once to the question whether the curative statute at least as of its effective date is a valid enactment.

Such an adoption of a local law by State legislation may be an entirely sound procedure, even if the local law in itself was not a legitimate exercise of city...