13

The Four
Exceptions

Other than chapter 944, no emergency rent law was the source of as many landlord-tenant disputes as chapter 942. This statute prohibited the landlords from bringing summary proceedings against tenants whose leases expired before November 1, 1922, provided that the tenants were willing to pay a reasonable rent. Designed, said the Lockwood Committee, to “do away with the anxiety” of the many New Yorkers who were holding over in their apartments or had been served notice to move by October 1, 1920, chapter 942 covered all buildings that were “occupied for dwelling purposes,” but excluded new buildings—ones that were under construction when the law went into effect or were started thereafter. In conjunction with chapter 947, which barred the landlords from bringing actions in ejectment against holdover tenants, chapter 942 deprived the landlords of what A. C. McNulty, counsel to the New York City Real Estate Board, called their “time honored” right to take back their property at the expiration of the lease. What made chapter 942 the source of so many landlord-tenant disputes, however, was not that it suspended summary proceedings for slightly more than two years, but that in McNulty's words, “under certain unusual conditions” it allowed landlords to ask the courts to oust holdover tenants.1

The “unusual conditions”—or, in Judge Frederick J. Spiegelberg's words, “the four exceptions to the tenant's right to remain against the landlord's will”—were largely the result of the Real Estate Board's campaign to water down the rent laws. This campaign was launched in early 1920, by which time it had become apparent that the state legislature was likely to pass a bill, known as chapter 137, that would empower the municipal court judges to grant a stay of up to twelve months to holdover tenants against whom a final order had been issued. The bill, the board's spokesmen pointed out, would not only prevent owners from moving into their own property, but also deter builders from erecting new apartment houses and discourage the sale of apartments to tenants, which, it was widely believed, would stabilize rents and promote thrift. On behalf of the board, McNulty urged the legislators to amend the bill to exempt property that was required “for immediate, actual and bona fide occupancy” by the landlord (and his family), needed for the purpose of demolition or substantial reconstruction, or sold (or to be sold) to tenants (or others) on a cooperative basis. Senator Charles C. Lockwood conceded that some of the Real Estate Board's amendments were reasonable. But he refused to incorporate them into the bill, believing that the matter should be left to the municipal court judges, who he thought could be counted on to adopt a set of rules that would allay the board's concerns. At the behest of the Lockwood Committee, the legislature shelved the amendments and in late March enacted chapter 137.2

Much as Lockwood expected, the Board of Municipal Court Justices adopted several rules in early April to ensure uniformity in the implementation of chapter 137. Among other things, they provided that the judges should not grant a stay in the following situations: if the landlord could establish that he or a member of his family wanted to move into the premises immediately and reside there permanently; if the landlord (or someone to whom he was about to sell the property) intended to reconstruct the building or to demolish it and erect a new one in its place, provided that the reconstructed or new building increased the stock of residential or commercial space; or if the building had been sold to several people who planned to live in it or to a corporation whose stockholders intended to move in forthwith. Although these rules dealt with most of the Real Estate Board's concerns, its spokesmen were sorely disappointed with the outcome. The rules were fair to both the tenants and the landlords, McNulty pointed out. “But what happened” after they were adopted? “Did the judges follow the rules they themselves had established? Not a bit of it!” Instead, many of them declared that the rules, “having been made without statutory authority,” were not binding—that they were, as Richard O. Chittick, executive secretary of the Real Estate Board complained in September 1920, “merely advisory.” As a result, said McNulty, each of the municipal court judges interpreted chapter 137 as he saw fit.³

The Real Estate Board renewed its campaign to water down the rent laws in late August, not long after Governor Alfred E. Smith announced his intention to call a special session of the legislature to deal with the housing problem. In preparation for the special session, the Lockwood Committee and several legislators drafted a host of bills to regulate rents and prevent evictions, many of which were much harsher than the April laws. Of particular concern to the Real Estate Board was a bill that temporarily suspended summary proceedings in New York City and cities in the adjoining counties. This bill, which became chapter 942, had the support of Senator Lockwood and Arthur J. W. Hilly, chairman of the Mayor's Committee on Rent Profiteering. In its attempt to water down the bill, the Real Estate Board urged the legislators to include a handful of exceptions, which were for the most part revised versions of the ones for which it had been pushing without success since the spring of 1920. Stressing the widespread view that in the long run the only way to relieve the housing shortage was to promote residential construction, Chittick and other real estate men hammered away at the point that it made no sense for the legislature to “urge capital to build houses” while at the same time “[taking] away all inducement to build.”4

Spokesmen for the tenants opposed these exceptions on the grounds that they provided “loopholes through which [the] law can be entirely emasculated.” As the executive secretary of the United Tenants Organization said, the landlord could claim he wanted the apartment for himself in order to oust the old tenant and lease it to a new one at a higher rent. The landlord could also claim he intended to demolish one building and replace it with another when he had no intention of doing so. And, warned the Call, many tenants would also be forced to move under the provision “that was ostensibly designed to promote cooperative home owning.” The result of what it called the “joker” in the September laws would be “an orgy of evictions.” Despite these objections, the legislators were unwilling to do more than modify the exceptions in ways that allayed some of the tenants’ concerns. Apparently Senator Lockwood and his colleagues believed that the inclusion of these exceptions would not only undermine the opposition to chapter 942, but also render the law less vulnerable to attack on constitutional grounds. (Indeed, William D. Guthrie and Julius Henry Cohen would later argue in court that chapter 942 did not deprive the landlord of property without due process of law because it allowed him to recover the premises under certain conditions. “In every fair and reasonable situation, he may have back his property,” they said; it was only when he “desires to evict without reason” that he may not.)⁵

As enacted in late September, chapter 942 provided that a landlord could not bring summary proceedings against a holdover tenant in greater New York before November 1, 1922, unless he could prove to the satisfaction of the court that he met one of following criteria. One was that he sought “in good faith” to recover the premises as a dwelling for himself and his immediate family, which did not include his brothers, sisters, and other relatives. To take advantage of this exception, the landlord had to be “the owner of record” and “a natural person,” as opposed to a corporation. Another was that he intended, also “in good faith,” to demolish the old building and erect a new one, the plans for which had been approved by one of the borough building departments. Under pressure from organized labor, the legislators shelved a proposal that the new building had to be used exclusively for residential purposes. Yet another was that the building had been sold, again “in good faith,” to a corporation formed under a cooperative ownership plan, according to which all the apartments were to be leased to the stockholders “for their own personal, exclusive and permanent occupancy.” The stockholders would have to take possession as soon as the tenants were ousted. Chapter 942 also provided that the landlord could bring summary proceedings against a holdover tenant if he could prove to the satisfaction of the court that the tenant was objectionable, a provision that was a revised version of chapter 133 of the April laws. These exceptions were also incorporated into chapter 947, which suspended actions of ejectment until November 1, 1922.⁶

Chapter 942 was one of the most draconian of the emergency rent laws. Whether it was revolutionary, as some opponents charged, is debatable. What is not debatable is that it was a striking departure from past practices. Hitherto, said Tenement House Commission Frank Mann, “the landlord had absolute control of his property and could do what he liked insofar as the tenants were concerned.” One manifestation of this “absolute control,” noted Junius Pendleton Wilson, chief counsel to the Mayor's Committee on Rent Profiteering, was a clause in nearly every lease that a landlord could at any time bring summary proceedings against a tenant whom he regarded as objectionable. “Shocking as it may appear to our conceptions of justice,” wrote Judge Spiegelberg, “under this clause the landlord could terminate any lease, no matter how long it had to run, by the mere assertion that he deemed the tenant objectionable.” He did not have spell out in what way the tenant was objectionable. Nor did he have to offer proof. His word was enough. The tenant could not challenge the landlord's charge; nor could he offer evidence to the contrary. As Judge Harry Robitzek put it, under the law the landlord has the right to terminate a lease “when the tenant does anything which [he construes] as being improper or objectionable.” The landlord has to do nothing but give the tenant notice. And the court has no option other than to issue a final order—and, if inclined, grant a short stay.7

In the aftermath of World War I, some judges watched with growing concern as many landlords brought summary proceedings against tenants who had no prior history of objectionable behavior. More often than not, it seemed the suit was, in the words of Judge Charles L. Guy, “a mere subterfuge,” an attempt to raise the rent by replacing the old tenant with a new one. Early in 1919, for example, the Seventh Avenue Holding Corporation asked Judge Robitzek to dispossess Frank J. Deyber from his apartment on Ogden Avenue six months before his lease expired. Robitzek did not think that Deyber (or any member of his family) had acted in “a disorderly or improper manner.” But he felt obliged to issue a final order for the landlord. If his ruling was upheld, “and I have not the slightest doubt that it will [be],” he warned, “every lease made in New York [City] is void.” Peter A. Sheil, who sat in the same courthouse as Judge Robitzek, went even further. Late in 1919 William Korn brought summary proceedings against three tenants whose leases had not yet expired. He argued that the tenants, who had demanded that he provide steam heat and hot water and repair a broken window, were objectionable. Ignoring the law, Sheil instructed the jury to rule in favor of the tenants. There was no reason to believe that the tenants were objectionable, he declared; nor was there any evidence that the landlord was acting in good faith.⁸

The issue came up again in December 1919, when the Appellate Term of the First Department handed down a decision in a case that pitted the Waitt Construction Company against Jeanne Lorraine. Waitt Construction had asked Manhattan's Seventh District Court to oust Lorraine, whose lease ran from October 1, 1919, to September 30, 1920, on the grounds that she was objectionable. Although the lease contained a clause that allowed the company to terminate the tenancy if it deemed the tenant objectionable, the trial judge dismissed the petition, holding that the clause did not give the landlord the right to bring summary proceedings against the tenant. Waitt Construction appealed. Writing for the Appellate Term, Irving Lehman reversed the lower court's ruling on technical grounds and ordered a new trial. But he then went on to say that since the landlord could only terminate the tenancy if he deemed the tenant objectionable, “he should be required to allege and prove this fact.” Lehman's decision created a good deal of confusion. And many New Yorkers assumed that it would enable landlords to oust tenants “whose sole offense,” wrote the Times, was that they could not pay as much rent as others. Troubled by what he called a “widespread and erroneous construction” of his opinion, Lehman incorporated into it a provision that “not only must the landlord allege in the petition that he deems the tenant ‘undesirable,’ [he must] also prove it.”9

If any doubt remained about where things stood, they were dispelled three months later, when the Appellate Term issued a ruling in a case that had been filed in Manhattan's Seventh District Court. In this case the Gorham Construction Company asked the judge to oust Samuel B. Woolman, whose lease did not expire until the end of September, on the grounds that he was objectionable. Arguing that the landlord had not provided evidence to show that he had acted in good faith or that the tenant had behaved in an objectionable way, Woolman's lawyer moved that the petition be dismissed. The judge denied the motion. He also excluded the tenant's testimony, which alleged that the company had never filed a complaint against him and that one of its officers had warned he would be evicted unless he agreed to pay a higher rent. The judge then ruled in favor of Gorham Construction and issued a final order against Woolman, who took the case to the Appellate Term, which reversed the lower court's ruling. Writing for the court, Judge Guy held that the trial judge erred in excluding testimony showing “lack of good faith on the part of the landlord.” Pointing out that he had misconstrued Waitt v. Lorraine, it ruled that the landlord must “allege and prove that he deemed the tenant objectionable.” The tenant was entitled to submit evidence that the landlord had not acted in good faith, which was a question of fact that should be left up to the jury. “In determining the issue, proof as to whether the landlord had reasonable ground for deeming the tenant undesirable is relevant and material.”¹⁰

At a time when many thousands of dispossess proceedings were pending in the municipal courts, many New Yorkers soon came to believe that Waitt v. Lorraine did not go far enough. So did many legislators. The Appellate Term had only ruled that a landlord who brought summary proceedings against a tenant whose lease had not yet expired had to prove that he deemed the tenant objectionable—that, in other words, he was acting in good faith—and not that the tenant was in fact objectionable. Thus under Waitt v. Lorraine, the Lockwood Committee pointed out, a landlord was still able “to get rid of any tenant when he had an opportunity to get a higher rent from a new one.” Thus shortly before Gorham v. Woolman was handed down, the committee filed a bill, known as chapter 133, that provided that if the landlord attempted to terminate a lease on the grounds that the tenant was objectionable, he would have to prove “to the satisfaction of the court” not only that he deemed the tenant objectionable, but also that the tenant was objectionable. As the Times put it, “the burden of proof” was placed squarely on the landlord. One of the few April laws that was a permanent measure, chapter 133 was enacted on April 1, 1920, and went into effect forthwith.11

Before long many New Yorkers came to believe that chapter 133 did not go far enough either. Like Waitt v. Lorraine and Gorham v. Woolman, chapter 133 covered only tenants whose leases had not yet expired. It provided no protection to holdover tenants, many of whom had been served with a notice to vacate their apartments. Hence when the Lockwood Committee drafted a set of bills for the special session of the legislature in September, it included in what became chapter 942 a provision that a landlord could not oust a holdover tenant on the grounds that he was objectionable unless he could prove “to the satisfaction of the court” that the tenant was objectionable. Under chapter 942, which was enacted in late September, even a holdover tenant was given, in Junius Pendleton Wilson's words, “every opportunity to introduce evidence that the landlord was not acting in good faith, and that he [the tenant] was not, in fact, objectionable.” To the dismay of some New Yorkers, however, chapter 942 did not define “objectionable.” Nor did it provide guidelines for defining it. Whether a tenant was objectionable was a matter of fact, not of law, the determination of which was left to the municipal courts.¹²

This was not an easy task, not for the judges and not for the jurors. If the landlords were to be believed, some tenants were indeed objectionable. A few turned their apartments into “a house of ill fame.” And some made “hooch,” or illegal alcohol, on the premises; the Eighteenth Amendment notwithstanding, at least one Bronx tenant sold “home brew” to his friends. (He was very popular, the landlord's lawyer told Judge William E. Morris. “No wonder,” Morris said.) Other tenants broke bathroom fixtures, shattered glass windows, and left faucets open so long that other apartments were flooded. Still other tenants threw garbage out the windows, put trash in the ash cans, and dropped cigar butts on the roof. One tenant kept sixteen dogs in a four-room apartment. A few tenants were often intoxicated and combative, sometimes going as far as to attack the landlord, his family, his employees, and, in one case, the janitor's daughter. Sometimes the tenant's family was objectionable too. One tenant's wife refused to allow the landlord into the apartment to repair a gas range and then threw a glass pitcher at him. And another tenant's children teased the landlord's wife, a devout Catholic, about her religion, tossed beans and tomatoes at her, and, after a storm, piled up snow two-feet deep in the vestibule.¹³

But were the landlords to be believed? Many New Yorkers, some of whom shared State Senator Henry G. Schackno's view that “there is no such thing as an honest landlord,” had their doubts. As they saw it, most landlords accused their tenants of being objectionable only because they refused to go along with a rent hike. Although the municipal court judges were well aware, as Judge William J. A. Caffrey put it, that there were “bad tenants as well as bad landlords,” many of them were dubious as well. As early as late 1919 Harry Robitzek, who was struck by the sharp increase in the number of summary proceedings in the Bronx, remarked, “I cannot conceive of all these defendants being undesirable.” In his opinion, the increase was attributable not so much to objectionable tenants as to profiteering landlords. William E. Morris was skeptical, too. After hearing a case a year later in which the landlord brought summary proceedings against a tenant who had refused to pay a rent hike, Morris said to the tenant that if he had paid the landlord the $65, “you would be very desirable.” A year later another municipal court judge observed after a trial that the tenant had resided in the apartment for many years, during which time he had done nothing to trouble the landlord. Then the landlord raised the rent, the tenant balked at paying, and “now suddenly [he] becomes objectionable.” “It is scarcely believable,” said the judge. Indeed, wrote Spiegelberg several years later, “it is amazing to contemplate the number of tenants whom the landlords consider objectionable.”14

In some cases the municipal courts ruled in favor of the landlords. In Kline v. Kleenan, which was handed down in Manhattan's Third District Court in late 1920, the judge ruled that the tenant whose wife refused to allow the landlord into the apartment to repair the gas range and then threw a glass pitcher at him was objectionable. He issued a final order ousting the tenant, but granted him a stay until March 1, 1921. The result was much the same in McGowan v. Stevens, which was handed down in Manhattan's Fifth District Court in early December 1920. The case involved an eight-room apartment that was occupied by the tenant's daughter (and on occasion by the tenant herself) as well as by as many as ten roomers, who slept in every room but the kitchen and bathroom. Although Judge Spiegelberg found that both the tenant and her daughter were “highly respectable women,” he also found that many of the roomers had engaged in “improper behavior.” If the tenant knew of this behavior, she should be held responsible; if not, she was “culpable” of failing to take “proper care” in the selection of “those who shared the apartment with her.” In either case, she was objectionable. To permit or connive at “improper conduct” is “ground for removal,” Spiegelberg later wrote.¹⁵

In most cases, however, the judges and juries ruled in favor of the tenants, especially when the charges were trivial or—in the case of a landlord who claimed a tenant was objectionable because he sat on the stoop in a rocking chair every evening—“little short of ridiculous,” wrote the Bronx Home News. In such cases the court had good reason to dismiss the petition. To give a few examples, Judge Morris refused to oust a tenant for playing cards in her apartment. Even before she responded to the charge, Morris said, “Sh-h-h—Madam, Sh-h-h.” Don't say anything. “It's no crime to play cards.” He then bid her good day, told her to pay the rent, and declared, “case closed.” Morris also ruled against another landlord who was trying to remove a tenant whose children had broken a few windows. “All children break windows,” he said. Writing in the Times, one journalist pointed out that several judges held that a tenant was not objectionable if his children “leave marbles on the sidewalk, leave the front door open, and otherwise conduct themselves in the manner of little boys everywhere.” It took a jury only four minutes to decide that Jacob B. Kessler, a costume maker who lived on Fort Washington Avenue, was not objectionable because his children played the piano and danced in the apartment. The jurors may have been influenced by Mrs. Kessler's testimony that the S. and K. Realty Corporation told her it had a prospective tenant who was ready to pay nearly twice as much for the apartment as she and her husband were paying.16

Even in cases where the charges were more serious—so serious, wrote Spiegelberg, that it was the landlord's “duty to bring the case before the court”—the outcome was often the same. Despite the evidence that a tenant was often intoxicated, noisy, and violent, that he annoyed the other tenants and even attacked the janitor and struck her daughter, a Manhattan judge ruled in Hilliard v. Dorritie that he was not objectionable. And in Papa v. Ferraro a Bronx judge refused to find a tenant objectionable even though he had threatened the landlord, saying that if he was evicted, “God help you. We fix you.” Although he warned the tenant “you will land in jail if you do not let the landlord alone,” the judge declared, “I have never signed an order ruling that a tenant is objectionable, and I am not disposed to do so on the testimony presented in this case.” Another Manhattan judge ruled against a landlord in Klingenbeck v. Young because the evidence showed that the tenant, who threw refuse out the window and otherwise annoyed the other tenants, was objectionable in June 1920, but not in October 1920, when the landlord filed the suit. After deliberating for three minutes, wrote the Times, one jury decided “that a tenant who made home brew in his leisure hours was far from objectionable.” Another jury found that a tenant was not objectionable even though he had once been arrested and convicted for disorderly conduct and now ran a distillery out of his apartment.¹⁷

As a rule the landlords did better in the appellate courts than in the trial courts. Pointing to the “undisputed” evidence that the tenant was objectionable, the Appellate Term reversed the lower court's ruling in Hilliard v. Dorritie and granted the landlord's petition. Citing the “overwhelming” proof that the tenant was objectionable, it also overturned the lower court's decision in Papa v. Ferraro. Besides awarding the landlord possession of the premises, Judge Guy took the trial judge to task for his unwillingness to consider the landlord's evidence. The Appellate Term ruled that the trial judge had erred in Klingenbeck v. Young too. Although the court dismissed the appeal on technical grounds, it held that the trial court's interpretation of chapter 942, under which a tenant could only be ousted if he was “doing things that are objectionable at the time of the proceedings,” was “too narrow.” The judge “had no right to withdraw the case from the jury merely because there was no evidence that the objectionable acts had continued over the summer.” The appellate court also held that the trial judge erred when he denied a precept to the Hermitage Company, one of whose tenants had converted his residence into as workshop without the landlord's permission and refused to move out when his lease expired. Writing for the court, Edward G. Whitaker ruled that the tenant was objectionable and that the landlord was entitled to take back the premises.¹⁸

But most landlords were reluctant to take a case to the appellate courts. It cost too much money and took too much time. Indeed, many landlords were even disinclined to file suit in the trial courts. The calendars were often so full that if the tenant asked for a jury trial it might be a year or longer before the case was heard, said Reuben J. Wittstein, a lawyer and spokesman for the Upper Harlem Tax Payers Association. In the meantime, remarked John H. Hallock, who managed more than 450 tenement houses on the Lower East Side, the tenant was free to remain in the premises and do serious damage to the property. Wittstein also pointed out that the landlords had no way of knowing how the courts would rule. Nor did the lawyers. “It is impossible to advise a landlord as to what constitutes [objectionable behavior],” he said. The question is one of fact, which was up to the judges and juries. But the landlords had misgivings about the judges, many of whom were sympathetic to the tenants. They were also leery of the juries, most of which were made up largely of tenants. As one Manhattan landlord said, most of his tenants were “decent and respectable people,” but one was an anarchist who constantly quarreled with the janitor and the other tenants. Although reluctant to retain counsel, he eventually attempted to oust the tenant on the grounds that he was objectionable. But as soon as the tenant requested a jury trial, he dropped the suit.19

As well as disheartened by what they regarded as the bias of the judges and jurors, the landlords were frustrated by the judicial process itself. After all, chapter 133 put the burden of proof on the landlords—and chapter 942 left it there. As Stewart Browne complained, the courts would not take the landlord's word that a tenant was objectionable, not even if it were corroborated by a member of the tenant's family or the superintendent or janitor of the apartment house. Indeed, said Isaac Hyman, president of the West Harlem Property Owners Association, the courts would not rule in the landlord's favor unless the other tenants testified that the tenant in question was objectionable. “In other words,” he went on, “they [the courts] have construed the word ‘objectionable’ as not objectionable to the landlord but objectionable to the community.” But most tenants were afraid to testify against objectionable tenants, even, said Hyman, in the most egregious cases. They would be bullied, threatened, and assaulted if it became known that they were willing to testify, said Browne. As a New York World reporter wrote, “it is difficult to persuade other tenants to testify against gunmen and other gentlemen who have a habit of using firearms with unpleasant accuracy.” Most tenants were also aware that if the court refused to remove the “objectionable” tenant from the apartment they would be in what Hallock called “a perfect pot of hot water.” And even if the court ousted the tenant, it would probably grant a stay of at least a month, during which time the other tenants would have him as a neighbor—a grim prospect, to say the least.²⁰

Before long many landlords came to believe, as the World reporter wrote, “that it was difficult—in fact almost impossible—for them to evict undesirable tenants.” A case in point was Stewart Browne, who told the Lockwood Committee, “It is an utter impossibility to get a tenant evicted, no matter how undesirable he may be.” Isaac Hyman agreed. Asked what a tenant would have to do to be found objectionable, he replied, “She would probably have to kill the landlord.” The courts, he added, would not find a tenant objectionable “unless every [other] tenant goes on the stand and testifies that [the tenant in question] is objectionable.” Along the same line, Leo Rosenberg, a spokesman for the Harlem and Bronx Property Owners, said, “It is much easier to convict a person today of murder in the first degree than [to] obtain a final order before a jury ousting a tenant upon the ground of being objectionable.” As Browne put it, “There isn't a single species of physical destructive devilment that the human mind can conceive of that is not occurring daily in thousands of homes in New York City.” And under the emergency rent laws there was nothing the landlords could do about it.21

Although it was very hard to oust an objectionable tenant, some landlords tried—though only, said one, when he could count on the support of the other tenants. Many others gave up, deciding it was not worth their while to file a suit or dropping the suit after filing it. Deeply frustrated, the real estate men urged the legislature to revise the emergency rent laws in ways that would permit reputable landlords to get rid of objectionable tenants, yet prevent unscrupulous landlords from claiming that a tenant was objectionable in order to increase the rent. One way, said Browne, was to make it mandatory for the courts to oust an objectionable tenant provided the landlord posted a bond equal to twelve month's rent that would require him to enter into a twelve-month lease with a new tenant at the same rent that the old tenant had been paying. Other real estate men held that as long as the emergency rent laws remained in effect, there was only one solution to the problem. “When filling apartments be careful in your choice of tenants,” H. M. Lazinsk urged the members of the Greater New York Taxpayers Association. “Size them up, look them up, acquaint yourself with their past history as tenants. Make sure of their reputations and characters first[, and] then let them in or turn them down.” Landlords were better off leaving an apartment vacant, even if it meant losing a month's rent, than ending up with “a bad egg for a tenant.”²²

No sooner were the September laws enacted than a few landlords attempted to oust the tenants who were holding over on the grounds that they or members of their immediate family wanted to move into the apartments. As time passed, hundreds and then thousands of others followed suit. Some may have been driven to do so when they realized how hard it was to oust a tenant on the grounds that he was objectionable. Indeed, as Agnes Craig, attorney for several Bronx tenants leagues, said, it was not unheard of for a landlord to bring summary proceedings against a tenant on the grounds that he was objectionable and then, if the court dismissed the petition, to file another suit to oust the tenant on the grounds that he wanted the apartment for his “immediate and personal occupancy.” By the summer of 1921 many municipal courts were inundated with such suits, probably none more so than the Bronx Second District Court, where thousands of these proceedings were marked down for jury trials. For the judges—many of whom agreed with Judge Spiegelberg that it was “unjust to exclude the landlord from occupying his own property and [to] permit a stranger to remain”—these suits posed a knotty problem.²³

Among the many judges who were well aware of this problem was Peter A. Sheil. As he pointed out, some landlords brought summary proceedings against their tenants because they wanted the apartment for themselves and their family and intended to move in as soon as it was vacant. To understand why, bear in mind that many of these landlords were also tenants. If they were to be believed, some had been notified that they would be evicted unless they agreed to pay a rent that was beyond their means. Others wanted to move from their old apartment to a new one that was closer to his or her (or a spouse's) place of work. Still others felt that their apartments were no longer suitable. Raphael Saperstein claimed his sixth-floor apartment was “unfit” because he and his wife could no longer climb six flights of stairs. He wanted to move into an apartment on the third floor of a building that he had recently bought. Henry Dreyer, who owned the building in which his family lived, told the court that he wanted to move into one of the five-room apartments because his wife was “too old and infirm” to take care of their seven-room apartment and their daughter was about to be married and move out. And Christopher Kenehan wanted an apartment of his own, one he would occupy with a housekeeper, because his daughter, with whom he was living in a house she inherited from her mother, was “suffering from nervous prostration and heart trouble” and could no longer “attend to me properly.”24

Many other landlords said their apartment was no longer suitable because it was too small. Sadie Rubin wanted to move from a five-room apartment in Manhattan—in which she lived with her husband, three children (and a fourth on the way), her brother, and a maid—into a seven-room apartment in the same building. The current tenant was willing to exchange apartments, said Rubin, but only if she gave him $300. Susan McFarland filed suit to oust a tenant from his seven-room apartment because there was not enough space for her father in the five-room apartment she was renting in another building. Saying that she wanted to keep her family of ten together, Sarah Bernstein, who lived in an apartment in the Bronx, sought possession of the adjoining apartment, which was occupied by a family of three. She offered the tenant a choice of five vacant apartments, two at a reduced rent, but he refused on the grounds that they were less desirable. Among the others was an Italian American who had worked for eighteen years as an ice dealer and eventually saved up enough money to buy a small tenement house on the Upper East Side. He now wanted to move out of a two-room apartment in which he lived with eight children and into one of the five-room apartments in his own tenement house. “How he put his eight children and himself in that apartment I don't know,” said Judge John R. Davies.²⁵

But as Judge Sheil pointed out, some landlords who brought summary proceedings against their tenants did not want the apartments any more “than I do.” Nor did they intend to move in as soon as they were vacant. The proceedings were often a “subterfuge,” to quote Judge Davies, to replace the old tenant with a new one (and sometimes to replace militant tenants—the “ringleaders” of the rent strikes—with docile ones). In one instance after another, said Judge Levy, the landlord demands a rent hike and, when the tenant refuses to pay, “suddenly and impulsively conceives the notion that he requires [the] apartment for his own use.” A case in point was a Bronx landlord who brought summary proceedings against a tenant who balked at paying an increased rent on the grounds that she wanted the apartment for herself. After the jury returned a verdict in favor of the tenant, she filed another suit, claiming this time that she wanted the apartment for her daughter, who, she said, was part owner of the property. Another case in point, wrote the Times, was a “fashionably-gowned landlady, wearing expensive jewelry,” who brought summary proceedings against four tenants who refused to pay a 25 percent rent hike. Appearing in Judge Benjamin Hoffman's court in Lower Manhattan, she told Assistant Corporation Counsel James D. Sullivan, who was representing the tenants on behalf of the Mayor's Committee on Rent Profiteering, that she had a plan. “I'll tell the Judge that I want one apartment for myself, one for my son, a third for my daughter and the fourth for my son-in-law.” Asked by Sullivan if she or they intended to move into the apartments, she replied, “I've got to give the Judge some excuse.”26

Many other landlords had no compunction about lying to the court. A Bronx landlord told Judge Robitzek that she needed the ground floor apartment in her tenement house for her ailing sons who were returning from military service in France and sorely needed a porch, back yard, and fresh air to recuperate. Believing that she was acting in good faith, Robitzek issued a final order against the tenant, a city employee with eight children, whose rent was $50 a month. The day after he moved out, an ad appeared in the Home News offering the apartment for $85 a month. Other landlords placed ads even before a final order was issued. As Judge Caffrey pointed out, “there are thousands of cases where the landlord within a week, sometimes two days after he went on the stand and testified [that he wanted the apartment for himself or members of his immediate family] has gone right out and let his place to somebody else [at a higher] rent,” often, according to Judge Leopold Prince, 50, 75, or 100 percent higher. Agnes Craig remarked that there were very few cases “where the landlord really moves in after the tenant moves out.” And even Stewart Browne conceded that in most cases the landlord had no intention of occupying the premises. (Many landlords claim they wanted the apartment for a child who was about to be married, wrote the Home News. But sometimes the wedding does not take place, and even when it does, “the young couple seldom moves into the vacant flat.”)²⁷

How were the judges and jurors supposed to figure out when the summary proceedings were on the up-and-up and when they were a subterfuge? It was easy to tell whether the petitioner was “the owner of record” (and, for that matter, “a natural person”). But it was far from easy to know whether the petitioner was acting “in good faith,” which, said Judge Robert F. Wagner, was “the corner stone upon which the whole provision rests.” Did he (or the members of his immediate family) intend to occupy the apartment as a dwelling, as the statute required? And did he (or they) intend to move in as soon as it was vacant? That, said Judge Spiegelberg, was a question of intent, which was very hard to gauge. “You cannot look into the hearts of men and determine whether they are telling the truth.” Moreover, he went on, it was very easy for the landlord to declare his intention to move into an apartment and very hard for the tenant to prove otherwise. In a decision handed down in December 1920, Spiegelberg said he was not persuaded that the landlords, who had filed suit to oust a tenant from an apartment on the Upper West Side, were acting in good faith. But after ruling against them, he went on, “I am not absolutely confident that I am right. Nobody can be where an inquiry into the intention is involved.”28

In some cases the trial courts ruled in favor of the landlords. Shortly after the September laws were enacted, Spiegelberg held a hearing at which the landlord claimed that he and his wife were invalids, no longer able to climb up to their walk-up apartment. Since the tenant provided no evidence to the contrary, “I very reluctantly granted a final order,” Spiegelberg said. (A month later he ran into the tenant's lawyer, who informed him that after the final order was granted the landlord told the tenant that when he asked for a 40 percent raise “you did not give it to me. Now I have you by the throat and I will ask you for an increase of 75 per cent.” Facing eviction, the tenant gave in.) Less than a year later another Manhattan judge awarded possession of an apartment to a landlady even though she lived full-time in Stamford, Connecticut, in a house in the summer and in a hotel in the winter. In another case a Bronx jury voted to oust a tenant after the judge instructed its members—erroneously, ruled the appellate court—that the landlord was entitled to recover the apartment unless the tenant, “upon whom the burden of proof is,” persuaded them that the landlord “does not want it for himself.” In still another case a Manhattan judge directed the jury to return a verdict in favor of the landlord even though he had notified the tenant that he could stay in his five-room apartment if he paid an extra two dollars a month (or, if he preferred, moved into a four-room apartment in the building at the same rent).²⁹

But in most cases the trial courts ruled in favor of the tenants. A Bronx jury refused to oust two tenants from their apartments on the sixth floor of a house on Ogden Avenue because the landlord, a doctor who lived in an apartment on the second floor, wanted the additional space for herself, her nurses, and her servants. In a case in which the tenant claimed that the landlord tried to raise the rent before filing the suit, a Manhattan court dismissed the petition even though the landlord denied that she had tried to raise the rent and pointed out that the tenant offered no evidence to prove otherwise. In another case a Bronx judge, probably William E. Morris, held that when landlords sue for a rent hike and, after the court rules against them, “[wake] up to the idea that they want [an apartment] for their own use, it is very strong evidence of bad faith.” In what he called “one of the most outrageous cases of profiteering I have seen for some time,” he not only denied the landlord's motion but also refused to permit him to try his luck with another judge. The trial courts also ruled in favor of the tenants where, according to the appellate courts, the landlord's testimony was “uncontradicted,” the ruling went “against the weight of the evidence,” and the verdict was “unsupported by any evidence.”³⁰

Why, wondered Clarence S. Stein, were so many judges inclined to rule against the landlords? Judge Davies thought he knew. The typical municipal court judge, he said, “is right out in the field.” He is well aware of “living conditions” in the city. He is sympathetic to the tenants, most of whom have reason to believe the landlord has “ulterior motives,” but no way of proving it. The judge is also “naturally suspicious” of the landlords, many of whom use the personal exemption provision of chapter 942 as a subterfuge and have no intention of moving into the apartment. Many judges have been “deceived [by the landlord] time and time again,” said Peter A. Sheil, who added that in cases where the landlord lived in the building he would give him the tenant's apartment only if he would give the tenant his apartment in exchange. “I don't want to put anybody out of a house,” he said. The municipal court judges were especially skeptical in cases where the landlord attempted to oust the tenant after the court refused to approve a rent hike, William J. A. Caffrey pointed out. Even to a man of “average intelligence,” which “is all we Municipal Court Judges claim to be,” this was evidence of “the mala fides of the landlord.”31

Many trial court rulings were appealed, usually to the Appellate Term of the First Department. In most cases—at least three out of four, according to Judge Davies—they were reversed. On occasion the appellate court ruled in favor of the tenant. In one case it overruled a Bronx judge who had refused to hear testimony (or even swear in witnesses) before he awarded the premises to the landlord. In the absence of any testimony, the court said it could not go into the merits of the case. But holding that the tenant was “entitled to his day in court,” it vacated the final order. In the case of the landlady who lived in Stamford, Connecticut, the appellate court reversed the trial court, saying that the facts “establish that the plaintiff did not seek in good faith to recover possession of the premises for the immediate and personal occupancy of herself and family.” In another case the appellate court held that the trial court's ruling that the burden of proof was on the tenant was “a sufficiently prejudicial error to require a reversal of the final order.” Under chapter 942, it held, the burden of proof was on the landlord. In yet another case the appellate court overruled a Manhattan judge who had directed the jury to return a verdict in favor of the landlord. He should have let the jury decide whether the landlord, who had offered the tenant a four-room apartment on the fourth floor if he moved out of his five-room apartment on the second floor, was acting in good faith.³²

But most of the time the appellate courts ruled in favor of the landlord. In some cases they just said that the trial court's ruling was not supported by the evidence (or that the judge excluded evidence that should have been admitted or admitted evidence that should have been excluded). In other cases the appellate judges spelled out the reasoning underlying their decisions. In one case the appellate court held that it did not matter that a Bronx landlord asked one court to oust the tenant shortly after asking another court to raise the rent. Was asking for what the court deemed an unreasonable rent “sufficient evidence of bad faith” to “preclude the plaintiff from changing her mind,” from deciding she would rather occupy the apartment than rent it, “and thus deprive her forever from getting possession of her own property?” Writing for the court, Edward G. Whitaker held it was not. Saying that it was “a very serious matter” to bar an owner from living in her house, he reversed the lower court's decision and entered a final order in favor of the landlord. In another case the appellate court disagreed with a judge who refused to grant a final order to the Manhattan landlord whose daughter was moving out and whose wife was old and infirm unless he agreed to exchange his seven-room apartment for the tenant's five-room apartment in the same building. Writing for the court, Edward R. Finch said, “If the landlord in good faith desired to occupy for himself and his family the apartment in question, the court below was without authority to impose as a condition that the landlord permit the tenant to occupy the larger apartment.” The judgment was reversed and a final order entered in favor of the landlord.33

Provided that the landlord wanted the apartment “for the immediate and personal use of himself and family,” his right to recover it was “absolute,” wrote Judge Lehman in a case handed down by the Appellate Term of the First Department. There was nothing in chapter 942 that prevented the owner from ousting a tenant from an apartment because there was another apartment in the building that “is unoccupied and might meet the landlord's needs as a dwelling.” Lehman went so far as to say that it was immaterial whether the landlord preferred to move into the occupied apartment because he could get a higher rent for the unoccupied one. He therefore overruled the Bronx Second District Court, which had dismissed the landlord's petition. The same court also reversed a ruling of Manhattan's Third District Court, which had refused to issue a final order in favor of a landlord who filed suit against a tenant who refused to move out of her seven-room apartment on the second floor and into a vacant seven-room apartment on the fifth floor. Although the landlord offered to decorate the fifth-floor apartment and rent it for five dollars less than the second-floor apartment, the tenant, who lived with her sister and brother-in-law, rejected the offer not only because she had a “weak heart,” which prevented her from climbing to the fifth floor, but also because she had spent $350 to decorate the apartment. The appellate court ruled that it made no difference that the tenant preferred to retain possession for “personal reasons.” Since the landlord was acting in “good faith,” she was “entitled to the apartment.”³⁴

The appellate court rulings left many municipal court judges disheartened. “With all due respect to their superior knowledge and wisdom,” said Judge Davies, the appellate judges “don't understand the type of people [who appear] before us as well as we [the trial judges] do.” They base their rulings entirely on “the cold typewritten record,” which they approach in “an analytic, scientific way.” The result, said Judge Prince, was that the landlord can establish good faith just by claiming that he wants to move into the premises. All he has to say, added Davies, is, “I want the apartment and I am telling the truth.” The trial court has to take the landlord's word, remarked Judge Spiegelberg, unless the tenant offers “evidence to the contrary.” But “in most cases he has nothing to offer. He cannot look into the [landlord's] mind.” Said Judge Caffrey, he is bound “if he is sitting alone to render a final order for the landlord, or in the event that he sits with a jury, to direct a verdict for the landlord.” “That is the law,” he explained, “and we must follow it.” A year before he was elected to the state supreme court, Judge Aaron J. Levy observed that for all practical purposes the appellate court rulings prevented the judges from considering the landlord's good faith and denying his petition to oust the tenant. Under chapter 942 the landlords were entitled to a final order provided only that they “show[ed] good faith” and did not “employ the proceedings as a subterfuge.”35

Not the least of the reasons that the municipal court judges were disheartened by the appellate court rulings was that in many cases they believed the landlords were lying—and lying under oath. No provision of the emergency rent laws was as tainted by perjury as the personal use exemption of chapter 942, Judge Caffrey said. “It is most deplorable to think that men and women who consider themselves good-living, respectful law[-]abiding people, without the slightest hesitation[,] will go into a court of justice and there under the sanctity of an oath make a statement that they know and must know is false.” It made a “mocker[y] of justice,” he declared, “almost a farce.” Especially disheartening to Caffrey was that even when the landlords committed perjury there was nothing much the judges could do about it. As he pointed out, the Appellate Term had ruled that “the landlord has the right to change his mind,” not only to decide to occupy an apartment that he had recently preferred to rent, but also to choose to stay in his old apartment rather than to move into a new one. “It was the only time in the history of mankind that I know of,” Caffrey said, “where a man has been given what has heretofore been regarded [as a] woman's privilege, that of changing his mind.”³⁶

Judge Spiegelberg agreed with Judge Caffrey. So did Agnes Craig, who said it was almost impossible to prove perjury by a landlord. She pointed out that one of her clients, a city employee with eight children, had been ousted from his apartment in the Bronx because the landlord claimed he wanted it for himself. When the landlord placed an ad for the apartment in the Home News the day after the tenant moved out, Craig brought the matter to the Bronx district attorney. But the district attorney was unwilling to file charges, saying that under the law the landlord had the right to change his mind. Speaking of the Bronx tenant organizations for which she served as counsel, she said, “We have not been able, in all our experience, to prosecute one landlord for perjury when he has refused to carry out an oath that he took on the stand.” Assemblyman Samuel I. Rosenman also agreed with Judge Caffrey. It was impossible to get an indictment against a landlord, he said. The landlord could always plead that he wanted the apartment at the time he brought the proceedings, but “after the tenant moved out he honestly changed his mind about moving in.” “Of course, this is a shallow subterfuge,” Rosenman said, “but [it] would nevertheless be a good defense in a criminal prosecution.” Given the appellate court's position, “prosecutions for perjury are rare,” wrote Judge Spiegelberg, “and convictions for that offence almost unknown.”³⁷

To prevent the personal use exemption of chapter 942 from being used as a subterfuge, some New Yorkers urged the state legislature to enact a law requiring the landlord to post a bond—equal, say, to six or twelve months’ rent—that would be forfeited if he did not move into the apartment after the tenant moved out and did not live in it for “a prescribed time,” said Assemblyman Rosenman (no less than a year, suggested Harry Allen Ely, president of the Washington Heights Tenants Association). But a bill that would have compelled the landlord to put up a $1,000 bond as evidence of good faith was shelved at the regular session in March 1925. Also shelved was a bill that would have barred landlords from bringing summary proceedings against a tenant on the grounds that they wanted the premises for themselves or their families. Other New Yorkers proposed that if the landlord did not move into an apartment from which he ousted the tenant the judges should set aside the final order and allow the tenant to move back in. Still others recommended that the judges should fine the landlord or even cite him for contempt, a step that Judge Jacob Panken took in the case of a landlord who had deceived the court in order to “visit injustice and hardship” upon a tenant. If implemented, these measures might have deterred some landlords from lying to the courts. But they would not have provided relief to the tenants who had already been evicted. For them, said Judge Davies, “the damage had [already] been done.”38

Chapter 942 spelled out two other “unusual conditions” under which a landlord could oust a holdover tenant. One was if he could prove to the satisfaction of the court that he intended to demolish the old building and replace it with a new one, the plans for which had been approved by “proper authority.” The other was if the building had been sold to a corporation on a cooperative ownership basis, according to which all the apartments were to be leased to the stockholders for their “own personal, exclusive and permanent occupancy.” Both provisions raised complicated issues. An owner might bring summary proceedings because he intended to replace an old apartment house with a new one—a move, it was hoped, that would help alleviate the housing shortage. (Given, as Judge Spiegelberg pointed out, that the new building “need not be for dwelling purposes,” that it may be “of any character,” even “a theatre or a garage,” it was far from clear how much this provision would have added to the housing stock.) Or an owner might bring summary proceedings not because he wanted to replace an old building with a new one, but because he wanted to replace the old tenants with new ones, who would presumably be willing to pay a higher rent. It was not an uncommon practice. According to one New Yorker, her landlord claimed he wanted to tear down five walk-up tenements on the Upper West Side in order put up a nine-story elevator building on the site. To that end he brought summary proceedings against twenty tenants, all of whom were forced to move. Rather than demolish the five houses, however, he turned what had been unfurnished apartments into furnished rooms, which were then rented to other tenants.³⁹

In other cases a building was converted into a cooperative for legitimate reasons. As owners, the residents would no longer be at risk of eviction—an extremely appealing prospect, said C. R. White, a spokesman for the cooperative movement in New York State, for the many tenants “who have found themselves in a continuous state of uncertainty as to whether they would have a roof over their heads.” The residents would also be protected from rapacious landlords and, as Tenement House Commissioner Frank Mann put it, ensured “a safe and profitable investment.” Cooperative housing made sense, argued its champions, not only for the well-to-do, but also for working people. Yet in other cases—indeed, said Agnes Craig, in most cases that did not involve apartments for the very wealthy—the cooperatives were often a gimmick to jack up the rents and/or unload the property at a highly inflated price. Clarence S. Stein was skeptical of cooperative housing. So was Fiorello H. La Guardia, president of the Board of Aldermen, who told the Fair Play Rent Association that buying a cooperative apartment “is much like taking your mother-in-law to live with you.”40

Although these provisions generated much less litigation than the ones dealing with objectionable tenants and personal use, the courts made some effort to resolve the issues they raised. For example, the Appellate Term of the First Department reversed a ruling of Manhattan's Fifth District Court, which issued a final order in favor of the Rossman Realty Corporation, whose owners wanted to renovate a seven-story apartment house so that it would accommodate twenty-five families instead of twelve. Rossman Realty planned to take out partitions, put in additional plumbing, fire escapes, and dumb-waiter shafts, and install two new bathrooms on each floor. Noting that the company was not going to make any changes to the foundation, floors, walls, and roof, Judge Nathan Bijur held that it was evident that it did not intend to demolish the old building “for the purpose of constructing a new one within the meaning of [chapter 942].” But in another case Judge William Young, who sat on Manhattan's Fourth District Court, granted a final order to the Ladies’ Christian Union, which wanted to convert five houses on East 36th Street into one building that would be used as a home for working girls. Pointing out that the union intended to change the exterior in a way that would leave the building with two entrances instead of five and redo the interior in a way that would “entirely destroy the identity of the five houses,” Young held that the proposed change “was much more than a mere alteration.” Saying that it was not necessary to tear down the shell of the building to comply with chapter 942, he awarded the union immediate possession of the premises.⁴¹

In a case in which a stockholder asked the court to oust a tenant from an apartment in a co-op on East 97th Street, the Appellate Term overruled the trial court and dismissed the petition on the grounds that “the alleged cooperative corporation is merely a subterfuge.” Pointing out that the stockholders occupied only five of the twenty-nine apartments—and that some of the stockholders owned several apartments and thus could not possibly occupy all of them—Judge Whitaker held that the petitioner was not acting in good faith. In other cases, however, the courts ruled against the tenants. They held that even when one stockholder had no intention of occupying his apartment, chapter 942 did not prevent the other stockholders from bringing summary proceedings against the tenants. Nor did the statute bar the stockholders from bringing summary proceedings where the building was not used exclusively for residential purposes. Perhaps the most important of these cases involved Woodrow Court, an apartment house on Broadway between 169th and 170th streets whose owners filed suit against one of the twenty-eight holdover tenants who refused to move out after the building was turned into a co-op. When the jury found in favor of the co-op, the tenant asked Judge Edgar J. Lauer to set aside the verdict. Ruling against him, Lauer held that the stockholders did not have to be in possession at the time of the sale, only at the time of the proceeding; nor did the cooperative plan have to be “perfected” before the statute was enacted, only before the suit was filed. Given that there was strong evidence the stockholders intended to occupy the apartments, Lauer denied the tenant's motion for a new trial, a decision that was affirmed by the Appellate Term.42

Late in December 1923, more than three years after the emergency rent laws were enacted and more than a year and a half after they were extended the first time, Stewart Browne wrote a nine-page letter to the Commission of Housing and Regional Planning, which had been appointed by Governor Smith to figure out whether the laws should be extended a second time. President of the United Real Estate Owners Association, Browne was one of the few prominent New York property owners who had not opposed rent control when it was first proposed. But by now he had had enough. “The Rent Laws originally were intended to prevent the eviction of law[-]abiding tenants willing to pay a reasonable rent,” he told the commission, “but they have degenerated into preventing the eviction of lawless tenants unwilling to pay a reasonable rent.” Browne, who was particularly incensed that the rent laws now covered tenants who had moved into their apartments after October 1, 1920, pointed out that under these laws it was very hard for the landlords to earn a reasonable return on their investment and virtually impossible for them to oust an objectionable tenant. Relations between landlords and tenants were worse than ever, and they were getting worse every day. The result was that “decent landlords” were being forced to sell out to what he called “shyster landlord[s].” And in a year or two “there will be [only] a few decent landlords.” The shyster landlords will then “beget additional shyster tenants, each trying to exploit the other.” And “'Dog eat dog’ will be the order of the day.”⁴³

Like many landlords, Browne placed more of the blame on the implementation of the emergency rent laws than on the laws themselves. “Justice in the Municipal Courts has completely broken down,” he wrote. The courts were so jammed that if a tenant asked for a jury trial, it often took six months to two years before the case was heard. While some judges were able and conscientious, others were incompetent, ignorant of the law, and susceptible to political pressure. Why, Browne wondered, did they “accept tenants’ statements without question” and landlords’ testimony only if corroborated by other tenants? And why did the courts require the landlords to file a bill of particulars and then sometimes just “throw it out the window, and say, ‘I don't care what you have got there, no increase'?” Knowing that they stood little chance of getting a “square-deal,” many landlords were unwilling to go to court, where they would “be harried, insulted and bullied” and forced to spend a good deal of money on lawyers and expert witnesses. If they went to court anyway, they were likely to lose in nine cases out of ten. The landlords could complain to the appellate courts, but they were reluctant to act except at the behest of the New York City Bar Association, which was not inclined to get involved. The implementation of the rent laws was “a disgrace to the administration of justice in the city of New York,” Browne declared.44

Given that many courts had far more cases than they could handle—and that many cases raised fine points of law and complicated questions of fact—it was hardly fair to blame the judges for these shortcomings. But blamed they were. The Appellate Term of the Second Department took a Brooklyn judge to task for failing to follow the law in his instructions to the juries. And the Appellate Term of the First Department criticized a Bronx judge for his prejudice against the landlords. The Federation of Bronx Real Estate Owners urged that William E. Morris and Michael J. Scanlan, both of whom were regarded as “tenant judges,” be removed from the bench. (The bar association even took the unusual step of refusing to endorse Morris for reelection, saying that his conduct on the bench demonstrated “his unfitness for judicial office.” Despite the bar association's opposition, Morris was reelected to a second ten-year term in 1921.) Nor was it only real estate men who were critical of the judges. The Federation of Tenants Associations asked the Appellate Division to investigate several judges for leaning toward the landlords’ positions. And Harry Allen Ely accused most municipal court judges of ignoring the emergency rent laws and instructing the juries “according to their own notions and not according to the statutes.”⁴⁵

By 1923, if not earlier, many New Yorkers were fed up. Victor M. Earle, a principal in a real estate firm that managed about forty apartment houses, most of them on the Upper West Side, pointed out that the long delays and political wheeling and dealing were very hard on the landlords. He proposed that the rent laws be “taken out of the hands of the courts and [put] into the hands of [an independent rent] commission.” William D. Kilpatrick, another Manhattan real estate man, agreed with him. Stewart Browne was open to the idea. So was Professor Samuel McCune Lindsay. The courts were ill prepared to deal with the complicated issues raised by the emergency rent laws, he argued, and a special administrative agency was sorely needed. On this point, if on few others, Morris Gisnet, a spokesman for the Bronx Tenants League (and chief counsel for the Greater New York Tenants League), agreed with Lindsay. Testifying before the Commission of Housing and Regional Planning, he urged that “an independent tribunal” be established to enforce the rent laws. The Bronx chapter of the Tenants Union of New York went even further, recommending that the governor appoint a rent administrator for every borough and county in the state. And Samuel Leavitt, a spokesman for the West Side Civic League, said that New York should deal with the rent laws “the way they do in Washington,” where the Ball Rent Act was enforced by the District of Columbia Rent Commission.⁴⁶

The D.C. Rent Commission may have been the best known of the nation's independent rent commissions, but it was also the most controversial. To many Washingtonians it was “a godsend,” without which the District's tenants would have been at the mercy of the landlords. To many others, however, it was an abomination, a dysfunctional agency that had done little to help the tenants, much to harm the landlords, and a great deal to exacerbate the housing shortage. The commission stressed that as a mechanism for enforcing rent control a rent commission was far superior to the municipal courts. Pointing out that New York State's emergency rent laws had encouraged “a multiplicity of [law]suits,” it insisted that “a commission is the only practical solution for the problem of rent regulation.” But when it attempted to enforce the Ball Rent Act—when, for example, it tried to determine whether a landlord was acting in good faith when he said he wanted the premises for himself and his family—the D.C. Rent Commission ran into many of the same problems as the New York municipal courts.47

Would New York landlords have been less upset if the state legislature had set up an independent rent commission to enforce the emergency rent laws? Although it is hard to say, I think not. Given the longstanding and deep-seated animosity between the landlords and tenants, a rent commission would probably have been as inundated with disputes as the municipal courts. And given that the legislature was extremely reluctant to provide much in the way of guidelines, the rent commissioners would likely have had as much trouble as the municipal court judges when they tried to determine who was covered by the rent laws, whether the rent was reasonable under chapter 944, and whether a tenant could be ousted under chapter 942. As Judge Charles H. Kelby pointed out, the laws were written in a way that left much to be desired. But the judges had to deal with them as they were. And the commissioners would have had to do likewise. Contrary to what Stewart Browne believed, the problem for the landlords was not so much the implementation of the emergency rent laws as the laws themselves. And in their efforts to solve this problem the real estate interests did more than just urge the legislature to transfer the enforcement of the laws from the municipal courts to a rent commission. They also tried hard to find ways to circumvent the rent laws—as well as to persuade the legislature to weaken the laws, shelve the proposals to strengthen them, and withstand the pressure to extend them before they expired.⁴⁸