Shavit v. 364 West 18th Street Corp. , 196 Misc. 801 ( 1949 )

Frank, J.

This is an action at law to recover “ overpayment of rent ” by a tenant who paid an increased rental pursuant to an order issued by the Office of Housing Expediter for the months of October and November, 1948. Thirty-five other tenants are similarly situated.

The increase order is dated September 21,1948, and is made retroactive to May 21, 1948. The question of retroactive rents is not here involved. The tenant claims that the increased rents may not be collected by the landlord because of a lease, which, by its original term expired in September, 1944, and which was in

effect on the “ freeze ” date and which contained a so-called automatic renewal clause. It is conceded that on or about June 1, 1945, a written notice was given to tenant of termination of the lease. This notice contains a statement that “ you will be considered a tenant on a month to month basis. ”

I hold that the tenant is a statutory tenant. Ho proof was offered that the tenant agreed to be considered as a month-to-month tenant, and in the absence of any agreement between the parties, the relationship can only be that which is imposed upon them by law. This being so, no notice was required in order that the landlord be entitled to collect the increase ordered by the Office of Housing Expediter (Wasservogel v. Becker, 191 Misc. 599). The tenant cannot therefore recover the payment of such increased rents paid.

Judgment will therefore be entered for the defendant.