In re Sipal Realty Corp.

BergaN, J.

The petitioner is the owner of a building at 200 West 57th Street. This proceeding against respondents as statutory tenants seeks an order determining the rental in pursuance of the Business Bent Law (L. 1945, ch. 314, as amd.). The petition has been dismissed at Special Term on the ground that the conditions upon which relief under this statute is to be predicated are not shown on the face of the pleading.

The case turns upon the reading of a legislative definition. By chapter 417 of the Laws of 1952 an additional category of rental area was brought within the definition of “Business space ” contained in subdivision (a) of section 2 of the Business Bent Law.

The text of the amendment here in issue is: “on and after March first, nineteen hundred fifty-two, a building in which at least sixty per centum of the total rentable area and sixty per centum of the total number of units formerly used as dwelling-space, is lawfully occupied as business space on such date ”.

The petition alleges that portions of the rentable area in 200 West 57th Street “ which were formerly used as dwelling space have, from time to time, become converted to, and have been lawfully occupied as, business space.” It alleges that some of such conversion and occupancy occurred before March 1, 1952, but that on that date 60% of the total rentable area in the building and 60% of the total number of units formerly used as dwelling space were not occupied as business space. It is further alleged that “ After March 1, 1952 ” at least 60% of the total rentable area and 60% of the total number of units formerly used as dwelling space ‘ ‘ has become, and is now, lawfully occupied as business space

The issue is thus squarely presented on the face of the petition whether a conversion after March 1, 1952 comes within the scope of the statutory amendment defining “business space”, or whether a conversion must have occurred before March 1, 1952. In dismissing the petition the court at Special Term was of opinion the conversion must have occurred before March 1, 1952; we construe the statute in a different sense to include as well conversion after that date.

We look first somewhat more closely at the intrinsic language of the amended statutory definition. The effective time reference with which the definition opens is composed of the words “ on and after ” March 1. This, of course, refers not merely to just one day; but to every day succeeding March 1. ‘ ‘ On and after” is a flowing and not a static concept of time; it is a description of time in a successive and continuous sequence of days; it fixes a beginning point from which the succeeding time area it describes becomes enlarged.

For example, a guarantee applying to sales “ ‘ on and after the date hereof ’ ” was readily construed by the Circuit Court of Appeals to be “ intended to be applied alike ” to present sales and to future sales of goods in Bond v. John V. Farwell Co. (172 F. 58, 65). There is an elasticity in the meaning of the word “ after ” itself which depends, as do other adverbs of time, such as “ from and after ” and “ then ” on context and upon the intent of usage. (New York Trust Co. v. Portland Ry. Co., 197 App. Div. 422, 427.)

No one, indeed, would have difficulty in seeing the meaning of the phrase “ on and after ” read in isolation; and the heavy-handed stress on its sense here finds indulgence because of the words appearing at the end of the phrase: “ is lawfully occupied as business space on such date.”

It is argued by respondents that this language points to a legislative intent to negate the words “ and after ” earlier in the sentence, so that the phrase would be construed as though it read “ on March 1 * ⅞ ⅞ is lawfully occupied as business space on such date ”. But this would impart an entirely static meaning to “on and after ” which it is not possible to find in those words themselves; whereas it is possible to read ‘ ‘ on such date ’ ’, when seen in context with a date and a notation of time succeeding that date, to mean on the date named or any date following. Thus the possibility of consistency of the statutory language looked at intrinsically lies in a reading of “on such date ’ ’ and ‘ ‘ on and after ’ ’ to mean on the date named and any date ‘ ‘ after ’ ’ the nominal date.

When we go slightly beyond the scope of intrinsic reading of the statutory words and look at the direct concomitants of enactment we find ourselves moving in the same direction of construction. The statute was adopted by both houses of the Legislature on March 15, 1952; it was signed by the Governor and took effect April 3.

March 1 had then passed. Nevertheless, the words “ is lawfully occupied on such date ’5 were used. If the Legislature had intended a cut-off date then in the past and had been framing a statute having no prospective effect, it would not have used the present tense of the verb to be; instead it would have used ‘ ‘ was lawfully occupied ’ ’. The tense denoted by “ is ” not only has the signification of prospective effect suggested by the date of the enactment of this statute, but what is perhaps just as important, the word “ is ” has a usual signification of prospective effect in statutory usage. And, of course, as it has been said very often, prospective reading of statutes is favored where that possibility lies open (Garzo v. Maid of Mist Steamboat Co., 303 N. Y. 516, 522; Jacobus v. Colgate, 217 N. Y. 235, 240).

When we turn from an intrinsic examination of the statute to an extrinsic one bearing on the genesis of the words used and the purposes intended, we are left in no doubt that the sponsors of the 1952 statute intended to give it a prospective effect. The people attending on the drafting of the words sought to provide for future changes in the character of the lawful occupancy and not to set up a cut-off date in the past giving status only to changes already made. Contemporary explanation of the amendment and executive evaluation of the law alike point in this direction.

The amendment was drafted and submitted to the Legislature by the Temporary State Commission to Study Bent and Rental Conditions. Its report to the Legislature dated March 8, 1952 describes the purpose of the amendment in present terms and not related to March 1, a date then past. It recommended that buildings ‘ ‘ when lawfully occupied ’ ’ by business to the extent of 60% of both the total rentable area and the total number of units formerly occupied for dwelling ‘ ‘ be defined as ‘business’ space.”

The report certainly is cast in a prospective sense and the •intent of the draftsman is made more explicit in an article written shortly after the enactment by the counsel to the commission (Meringolo, Amendments to Commercial and Business Space Rent Control Laws, N. T. L. J., April 15, 1952, p. 1486). In two special messages to the Legislature January 20, 1955 and January 23, 1957 the Governor, recommending repeal of the 1952 statute, construed it as having prospective effect.

We conclude, therefore, that the changes from residential to business occupancy occurring before and after March 1, 1952 pleaded in the petition bring the petitioner within the effect of the statute. The report of the commission showed a purpose to prevent abuse of permissible conversion by calling attention to the requirement that the occupancies which make up the percentage of the total must be lawful occupancies. This “ should make it plain ” the commission commented “ that the Legislature will not tolerate nor will it sanction any illegal occupation of rental space.” The public policy in an issue of this kind is a matter of legislative and not judicial determination.

The order should be reversed.