May 16, 1946.
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, GENUNG, J.
Max Epstein for appellant.
Leon London and Robert H. Sterling for respondent.
Summary proceeding for nonpayment of $1,075 rent, made up of $575, emergency rental for January and February, 1946, at the rate of $287.50 a month, and $500, attorney's fees and disbursements, pursuant to the terms of the lease, incurred in prosecuting dispossess proceedings against tenant for nonpayment of the September, October, November and December, 1945, rent.
Although no point is made in that regard, an inspection of the final order herein discloses the failure of the Trial Judge to fix the amount of the rent due or to render judgment for any sum. However, in view of the fact that the final order awards delivery of possession to the landlord, and the tenant concedes that the statutory rent due, as claimed in the petition, is $575, it would seem we may properly act on that concession and modify the final order accordingly.
As to the landlord's charge of $500 for attorney's fees as additional rent, in view of the emergency provision (L. 1945, ch. 314, § 8) that the tenant may remain in possession so long as he pays the statutory rent it is clear that the tenant may not be dispossessed for nonpayment of such additional rent. The charge of attorney's fees payable as rent has none of the characteristics of additional rent as compensation for occupation of the demised premises; it is merely a device operative under normal conditions for the enforcement of the provisions of the lease. Moreover there is no appeal by the landlord based on lack of judgment in its favor.
The final order should be modified by providing that the amount of rent due is the sum of $575, with interest and costs, and as modified affirmed, without costs, without prejudice to an action to recover attorney's fees.
HAMMER and EDER, JJ., concur.