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Abbott v. Vico

Decided: December 15, 1952.


McGeehan, Bigelow and Smalley. The opinion of the court was delivered by Bigelow, J.A.D.


The plaintiffs, as administrators of the estate of George Abdy, deceased, brought their action for rent of leased premises situate in the Borough of Brooklyn, New York. The defendants counterclaimed for the amount of rent paid in excess of that permitted by the law of New York and also for damages for unlawful eviction, and for the return of money deposited as security. At the conclusion of the plaintiffs' case the court dismissed their complaint, and the trial proceeded on the counterclaim. The jury returned a verdict in favor of the defendants for $10,920, and accordingly the judgment was entered from which the plaintiffs appeal.

The decedent was lessee of the ground floor loft of No. 360 39th Street, Brooklyn, and for a while carried on an embroidery manufacturing business there. Then he sublet or rented the loft or most of it, together with the embroidery machinery, chairs, tables and other equipment to the defendants for a term of two years, beginning April 1, 1946. The rent paid by decedent for the loft was $77.50 a month, and the rent he charged defendants for the loft, plus the use of the chattels, was $1,000 a month.

In November 1946 defendants shut down their business and left the premises unoccupied. A few days later decedent put a padlock on the door leading into the store. Defendants had paid the November rent in advance; they never paid any rent thereafter.

The plaintiffs sue for rent from December 1946 to March 31, 1948, the end of the two-year term.

At the conclusion of the plaintiffs' case defendants moved to dismiss the plaintiffs' action on the ground that they had not proved that decedent had given to defendants the notice or statement of rent required by section 3 of the Emergency Commercial Space Rent Control Law of the State of New York, Laws of 1945, c. 3. Upon the argument of the motion before the trial court, counsel for plaintiffs conceded that if the law applied to the letting by decedent to defendants, then the giving of the notice was necessary, but he argued that the statute did not control. "We have not complied with the law, because we take the position that the law does not apply to us." The court determined that the New York statute was applicable and dismissed the complaint. Was that error?

The New York statute controls the renting of "space used or occupied for commercial purposes"; it establishes maximum rents "for the use or occupancy of the whole or a part of any part of any commercial space." The plaintiffs argue that a letting of space together with machinery is outside the scope of the statute. We think not. It appears to us true that the New York Legislature intended to regulate the renting of

real estate and not the chattels that are used in the real estate. But a landlord is not permitted to escape the statutory limitations on the renting of commercial space by the expedient of coupling realty and personalty in a single lease. 24 Hours Service Garage v. Marko Motor Service , 105 N.Y.S. 2 d 680 (App. Div. 1951), lends support to this view. There was no error in the dismissal of the complaint.

The verdict for respondents on their counterclaim was based, in part at least, on a finding that decedent had evicted them. Plaintiffs argue that the evidence does not support such a finding. The respondent Vico testified that toward the middle of November 1946 the bottom fell out of the embroidery market. "We had a lot of goods in the place but we got cancellations and everything." Their customers told them "Stop." "And because of the cancellations that you had gotten, what did you do as far as the operation of your plant was concerned? Well, we shut down." Asked if he and his partner continued to go to the plant every day, he answered, "No. We were looking for business and, as long as we had none, there was no reason to go." But a day or two before Thanksgiving Day they took to the plant a machine they had had repaired, and found the door padlocked. They telephoned Mr. Abdy and he came, unlocked the door and let them in. After they had put the machine inside, Abdy relocked the door.

"And were you able to stay in the place after you returned the sewing machine? No." "And why not? Well, for one thing we had no work; * * * We were shut down because we had no work, so there was no -- I couldn't imagine why we would stay there at the moment."

Vico never went back to the shop after that. He was asked about the rent that fell due December 1. "We weren't able to pay them. We weren't doing business."

The other counterclaimant, Dal Cero, testified that he made an effort to get into the loft early in December. "I called up Mr. Abdy. I ...

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