Finkelstein v. Foley

CHIMERA, J.

Nathan Finkelstein for landlord. Lizzie Foley, tenant in person. CHIMERA, J. This proceeding affects housing accommodations and the tenant appears without counsel. It appears from the record that the matter had been placed on the calendar once before and adjourned in order to give the landlord an opportunity to obtain a certified copy of a rent commission certificate attesting to her claim that the legal rental was $36.80 per month. On order of the Justice then presiding the tenant deposited the sum of $69 with the Clerk of the court presumably to cover the rental for the month beginning with the 15th day of July, 1953 (the only month sued for) and for the month of August following. The papers on file do not indicate whether the tenant protested. In any event it must be assumed that the deposit was made without prejudice to either party. under the Real Property Law, they are not the same thing. The one is definitive as to time — the other does not end "at the end of any one month". If the landlord seeks the latter's termination, it will end only at the end of the month specified by him in his thirty days' notice prescribed by the law. Assuredly the termination of a fixed term brings into effect a statutory tenancy during the continuance of the "Emergency"; not so, in the case of a continuing term such as is here indicated. All of us may read with profit the scholarly and convincing letter of Benjamin J. Taruskin, Esq. (N. Y. L. J., April 8, 1953, p. 1150, col. 2). I believe his summary on this point correctly states the law. In view of the foregoing, until the original tenancy is terminated as indicated, the landlord is entitled only to the rental of $30 per month. The Clerk is directed to pay to said landlord out of the funds on deposit, the sum of $60 to cover the two months beginning July 15th and ending September 14, 1953. The balance is to be returned to the tenant. This is a practical disposition of the deposited funds, wholly unnecessary to the decision in the proceeding which is, that the petition is dismissed on the law and on the facts.