B. & S. Realty Corp. v. Wald , 115 Misc. 195 ( 1921 )

Lehman, J.

The landlord has brought summary proceedings against this tenant for non-payment \ of rent. It appears that the tenant signed a writtjen agreement of lease prior to October first for the rental of certain premises which he was then occupying under a lease which expired on the thirtieth day! of September. The tenant paid the first month’s rent under the new lease on October first, but interposed as a defense to these proceedings brought on account of the non-payment of the November rental thai the rent was unreasonable and oppressive and also a/lleges that the agreement was obtained under duressjf The trial justice has held that the payment of the first month’s rent constituted a ratification of his; agreement by the tenant and granted a final order in favor of the landlord on this ground. j

There is no doubt but that the payment of /the first month’s rent several months after the agreement was made, constituted a ratification of the contract which would prevent the tenant from claiming he entered into the agreement under duress. No ratification of the contract, however, can debar the tenan^from interposing the defense that the rent is unreasonable and oppressive. Under chapters 944 and 945 of the Laws of 1920 the tenant who pleads this defense does not disaffirm his contract nor is he obliged to relinquish the benefits that he has received under the contract, and a failure to claim the right granted to him by the statute to continue in possession of the demised premises upon payment of a reasonable rent, is not waived by the tenant’s failure to use such right at the first opportunity. A failure on the part of the tenant to claim the bénefit of the statute on the first of October could not induce the landlord in any way to change his position to his disadvantage, and, therefore, creates no estoppel against the tenant, and though such failure may be considered by court or jury as some evidence that in fact the agreement was not oppressive if the tenant thereafter makes such claim, it is at most an implied admission on the part of the tenant and can be given no greater effect than an admission made in any other way.

Final order should, therefore, be reversed and a hew trial granted, with thirty dollars costs to appellant to abide the event.

Final order reversed and new trial granted, with thirty dollars costs to appellant to abide event.