First Department, December, 1920. [Vol. 194. term of the lease; and if the statute be unconstitutional, the landlord may recover according to the agreement, but if it be constitutional, he may only recover the reasonable rental to be determined by the court or by a jury if either party demands a trial by jury. The only remaining point to be considered is whether, in the circumstances of the emergency, by which there was and would be until new houses and apartments were built this serious shortage of housing accommodations, the owners of existing houses, tenements and apartments which, in the city of New York, are occupied by far the greater part of the inhabitants as tenants, had a constitutional right to take advantage of their tenants and of others desiring accommodations and exact exorbitant rentals free from the exercise of any legislative regulation or control, or whether it was competent for the Legislature thus summoned in extraordinary session by the Executive, and fully advised with respect to these conditions, to apply this remedy to promote the general welfare and preserve the public health, safety and order, not by taking possession of private property either for public or private purposes, but by limiting during the period of the emergency such owners who saw fit to lease their premises to the recovery of reasonable rentals. The learned counsel have presented able and elaborate arguments and briefs covering nearly the entire field of judicial decisions with respect to the validity of statutes enacted in the exercise of the police power, the scope and limits of which the courts have wisely refrained from attempting to define. I deem it unnecessary to discuss the authorities at length and shall refer only to those sufficiently analogous on the facts to light our way to a correct decision. That such exercise of the police power has never before been attempted in this jurisdiction does not prove that it does not exist. That has often been declared. (Kujek v. Goldman, 150 N. Y. 176, 178; 1 Kent Comm. 477; German Alliance Insurance Co. v. Kansas, 233 U. S. 389. See, also, Cooley Torts, 13-15.) Although the State Constitution (Art. 1, § 6) forbids the taking of private property for public use without just compensation and thereby impliedly forbids such taking for private use, and both the State and Federal Constitutions provide that no person shall App. Div.] First Department, December, 1920. be deprived of life, liberty or property without due process of law, and the Federal Constitution affords all the equal protection of the laws (State Const. art. 1, § 6; U. S. Const. 14th Amendt. § 1), yet it is well-settled law that these provisions permit, for the public welfare, safety and health, the regulation of the use of private property and the regulation of the liberty of contract to an extent seriously affecting the use and value of property and at times destroying it and materially limiting and restricting the making of contracts. (Lincoln Trust Co. v. Williams Building Corp., 229 N. Y. 313; Cockcroft v. Mitchell, 187 App. Div. 189, 194; Stone v. Mayor, etc., 25 Wend. 157; Mayor, etc., v. Lord, 17 id. 285; 2 Kent's Comm. 339.) The owner of real estate in a densely populated area may lawfully be precluded from building thereon until plans in compliance with the laws and regulations deemed necessary for the public health and safety have been filed and approved, and even after building according to existing laws the owner, while devoting his building to a particular private use, may be required to make changes and alterations therein deemed necessary for like purposes, no matter how burdensome, and his only alternative is to discontinue the use. (Health Dept. v. Rector, etc., 145 N. Y. 32; Tenement House Dept. v. Moeschen, 179 id. 325.) So too, an owner of private property who devotes it to a use in which there is a direct public interest, such as storing and elevating grain or conducting a warehouse or an inn, subjects such use of his property to the police power of the State with respect to regulations fixing the charge to be made for the services rendered and the accommodations furnished. (Munn v. Illinois, 94 U. S. 113; Budd v. New York, 143 id. 517, affg. 117 N. Y. 1; Brass v. Stoeser, 153 U. S. 391; Nash v. Page, 80 Ky. 539; Girard Storage Co. v. Southwark Co., 105 Penn. St. 248.) One of the grounds recognized in the decisions cited for the intervention of the State through its police power is that such owner or owners have a monoply of the business and without such regulation might exact unjust charges. The scope of the decision in Budd v. New York (supra) is emphasized by the fact that Justice BREWER dissented in a vigorous opinion concurred in by Justices FIELD and BROWN, and took the point that the power to regulate should be limited to monopolies of law, as First Department, December, 1920. [Vol. 194. where exclusive privileges are granted, and should not be extended to monopolies of fact, which may be broken at will by others, and he cites as an illustration the erection of an office building which may give for the time being a monopoly of the business but which may be broken by others, and in such case he was of opinion that it would not be competent for the Legislature to regulate the rentals to be charged. It is quite conclusive, I think, that there may be a monoply of housing conditions, and the Legislature had before it facts presenting a collective monopoly of housing accommodations in an emergency, from which no relief could be afforded through breaking the monopoly by new building for a considerable period of time, and where the landlords although not shown to be acting in concert were quite generally taking advantage of tenants and thereby presenting an intolerable condition if the owners were to be left free to exact exorbitant rentals. It is not, however, necessary now to decide whether it would be competent for the Legislature at any and all times to regulate leasing on the theory that the leasing of houses, tenements and apartments to the extent that it is carried on in this great city, where comparatively few own their own houses, constitutes an appropriation of the buildings to a use in which the public is so directly or intimately interested as to warrant its regulation in ordinary times, for that has not been attempted. During the continuance of the emergency I think it was competent for the Legislature so to regulate it. No one questions the validity of the usury laws, which have existed from time immemorial for the purpose of preventing oppression by money lenders who, without regulation by statute, could take advantage of the necessities of those desiring the use of money and exact exorbitant amounts therefor. Those laws are, I think, analogous to that now before the court, which was enacted for the purpose of preventing similar oppression by those who during the emergency have many applications for leases not only from residents of the State whose welfare is its especial concern, but competing non-residents, and are in a position to exact and are exacting unreasonable rentals, and are thus taking advantage of those who have no homes of their own and are obliged to submit to their exorbitant demands, for they are not free to contract because everywhere App. Div.] First Department, December, 1920. they turn for shelter they are met with like exorbitant demands. This, I think, is a matter of great public concern warranting the intervention of the Legislature, which, of course, cannot compel the owners to open their doors and admit those who are without homes, for that would be a taking of the property; but it may, I think, provide that for the period of the emergency so long as they see fit to lease their property and enjoy the protection of the State, they must deal justly with their tenants. In Chicago, B. & Q. R. R. Co. v. McGuire (219 U. S. 549) a statute of Iowa prohibiting contracts between a railroad and its employees limiting the liability for injuries in advance of the injury, and providing that the subsequent acceptance by the employee of the benefits of the contract should not constitute satisfaction of the claim, was sustained as a valid exercise of the police power, not on the theory that State control over the corporation was reserved by its charter, but on the ground that it was not an undue interference with the liberty of contract preserved by the Fourteenth Amendment. In that case the court said, "In dealing with the relation of employer and employed, the Legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression." The use of the police power for the promotion of harmonious relations between capital and labor engaged in a great industry was assigned in McLean v. Arkansas (211 U. S. 539) as the ground for sustaining a State statute requiring that in determining the wages of miners, coal should be measured before being screened. The court there, after citing many decisions, said: "It is then the established doctrine of this court that the liberty of contract is not universal, and is subject to restrictions passed by the legislative branch of the government in the exercise of its power to protect the safety, health and welfare of the people." The court also placed emphasis on the fact that disputes and controversies between employers and employees were constantly arising and had been brought to the attention of the Legislature. In Knoxville Iron Co. v. Harbison (183 U. S. 13) a State statute requiring all employers to redeem in cash store orders issued in payment of wages was sustained First Department, December, 1920. [Vol. 194. as a proper exercise of police power. In that case the United States Supreme Court quoted with apparent approval from the opinion of the Supreme Court of Tennessee to the effect that the statute tended toward equality between employer and employee in the matter of wages and was "intended and well calculated to promote peace and good order, and to prevent strife, violence and bloodshed," and that, therefore, without regard to the State's reserved power over corporate employers, it was valid as a general regulation with respect to individual employers as well, and as a wholesome regulation adopted in the proper exercise of the police power. The court there cited Holden v. Hardy (169 U. S. 366) as sustaining the validity of a statute regulating employment of workingmen in underground mines and fixing their hours of labor, on the grounds that it was a valid regulation of the right to contract and not class legislation, and that it did not deprive the parties of the equal protection of the law or abridge the immunities of the defendant as a citizen or deprive him of his property and liberty without due process of law, and was a valid exercise of the police power. The court then cites Orient Insurance Co. v. Daggs (172 U. S. 557) where a State statute providing that in an action on an insurance policy for loss or damage by fire the insurance company should not be permitted to deny that the property insured was worth at the time the policy was issued the full amount of the insurance was sustained as a valid limitation upon the right of contract notwithstanding the fact that the parties had contracted otherwise. In Frisbie v. United States (157 U. S. 160) the court held that the liberty of contract preserved by the Federal Constitution is not absolute and universal and may in many instances be regulated and limited, and although in that case the point presented for decision was with respect to the validity of a statute limiting the charges of a pension attorney, the opinion was not confined to the power of the Congress with respect to pensions. In Sawyer v. Davis (136 Mass. 239), where the ringing of bells and the sounding of gongs and whistles in a factory had been duly enjoined as a nuisance and was thereafter authorized by statute, it was held that the statute was a proper exercise of the police power and that it superseded the decision as between the parties. The court there express the opinion that the |