
    Magdalena Mackmull, Respondent, v. Christian Brandlein and Frances B. Brandlein, His Wife, Appellants. Frank Bader and Elizabeth Bader, Respondents, v. Christian Brandlein and Frances B. Brandlein, His Wife, Appellants.
    Second Department,
    October 4, 1912.
    Beal property — Tenement House Law, section 122, construed—suit to cancel deed not complying with statute — waiver.
    The intent of section 122 of the Tenement House Law, as amended in 1909, is to take out of the operation of the statute tenement houses constructed after the enactment of the original statute in 1901, where there has been a human occupation for two years preceding the amendment, and no action has been taken to enforce the statute within six months after the amendment.
    Hence, a person who has been in the possession of a tenement house since 1906, and has received the rents and benefits therefrom, is not entitled in 1910 to have her deed canceled and the purchase money repaid upon the ground that the vendor falsely represented to her that the building complied with the Tenement House Law.
    Appeals by the defendants, Christian Brandlein and another,, from judgments of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 8th day of November, 1911, in each case upon the decision of the court rendered after a trial at the Queens County Special Term canceling certain deeds and directing the repayment of certain purchase money with interest.
    
      Anson Burlingame Cole, for the appellants.
    
      Henry Schoenherr [Isidor Buxbaum with him on the brief], for the respondents.
   Woodward, J.:

These actions involve the same question" of law, were argued together, and will be treated as one case. Magdalena Mack-mull’s case presents the most favorable state of facts for the plaintiffs, though there is so little difference in them that there is no occasion for distinguishing them, and we will use the facts in her case for the purposes of this appeal. She testifies that she bought the house in question in 1906; that she first saw Mr. Brandlein about the house upon a Sunday in September of that year, and that Mrs. Brandlein was present at the conversation; that Mr. Brandlein did the most of the talking, speaking in German; that he told her the house was all right; that “He said to me before I paid him money on account that the house was all right, and I would never have any trouble with it, and these are the last houses that would be allowed to be built that way according to law. He said nothing further or not much further. I believed what he said to me and I paid him $25 on account then. I had' some trouble with the tenement house department about those houses. The inspectors came then in 1908.” It was not disputed that in 1910, prior to the commencement of the present action, the plaintiff tendered a deed to the defendants and demanded a return of the money paid for the premises, with interest, claiming that the houses did not comply with the Tenement House Law, and that the defendants refused to accept the deed or to repay the money.. The original contract, bearing date, of December 17, 1906, was placed, in evidence, and the plaintiff on cross-examination testified as to the presence of several people at the conversation which took place on Sunday prior to the making of the contract, when she paid over twenty-five dollars on the ■ contract, and that she had no other conversation about the tenement house. This is the only evidence of fraudulent misrepresentation, except that there is a stipulation in the case which tends to show that the buildings did not conform to all of the requirements of the Tenement House Law as it was at the time of the sale of the buildings in 1906. - ,

The defendant testifies, without contradiction, that the plaintiff came to him and offered to purchase the houses; that he lived in the houses at the time, and that he showed them to the plaintiff, and told her they were all right;' that they were well built. He says "the buildings were completely finished at the time, in August, 1906, and. in response to questions by the court he testified that at the time of the sale six families were living in the house; that the plaintiff asked him about the rents, and that he told her twelve and thirteen dollars rent, six-family house. “ I told her there were six families and the rents were twelve and thirteen dollars for each apartment. I can’t remember any more if I said to her that those houses were the last to be built according to the old law; I can’t remember that no more, no sir, I do not remember. I don’t know, because I can’t remember that I said that word.” This is the extent of the evidence in support of the allegation of fraudulent misrepresentation. The plaintiff, in common with all other persons, is presumed to know the law, and she personally visited the premises and was told that it was occupied by six families, each of whom were paying twelve or thirteen dollars per month. Knowing the law, she saw the building and its appointments, and she Ayas in a position to know that it did not comply with the law as it then stood, and it is very doubtful, assuming the defendant to have used the language ascribed to him, if either of the parties understood that he was guaranteeing that the house complied with the Tenement House Law, or that it was outside of its provisions.

Assuming, however, that the representation was made, that it was false, and that the plaintiff relied upon the statement, where is the element of damage % Is there any question that she received exactly what was shown her as constituting the property ? She took title to the premises, it should be remembered, in 1906, entering into possession at once, and it is conceded that she had collected rents to the amount of $2,605.50 up to the time of the commencement of this action on the 1st day of October, 1910. While thus in possession arid collecting her rents, she testifies that she “had some trouble with the tenement house department about those houses. The inspectors came then in 1908.” What the trouble was does not appear; she was certainly not called upon to vacate the houses, for she went on collecting rents for two years, and without making a move to rescind the contract, and there is no eAddence from which it can be inferred that she had any legal difficulties in reference to the houses. In the meantime the Legislature of the State of New York amended the Tenement House Law, and after providing all of the details, section 122 was made to read that “If any building hereafter constructed as or altered into a tenement house be occupied in whole or in part for human habitation in violation of the last section [which provided for a certificate of compliance with the terms of the statute], during such unlawful occupation any bond or note secured by a mort-, gage upon said building, or the lot upon which it stands, may be declared due at the option of the mortgagee. * * * Provided, however, that any tenement house erected after April tenth, nineteen hundred and one, and which has been occupied for human habitation for two years immediately preceding the first day of January, nineteen hundred and nine, in which no changes or alterations have been made except in compliance with this chapter, shall be permitted to be occupied in the same manner as if a certificate had been issued that such tenement house conforms in all respects to the requirements of this chapter, unless an action or proceeding to require it to be vacated shall have been brought within six months after the passage of this act.” This provision was enacted and became effective on the 15th day of May, 1909. (See Consol. Laws, chap. 61 [Laws of 1909, chap. 99], § 122, as ,amd. by Laws of 1909, chap. 354.) The building, in the possession of the plaintiff, had been occupied as a human habitation for two years prior to the 1st day of January,- 1909. If it • had been altered at all, it had been altered by the plaintiff, and there is no evidence and no presumption in support of the theory that it had been altered, and at the time of the commencement of this action in 1910 more than six months had elapsed from the date of the passage of the act, and no action is alleged to have been started to require it to be vacated. The building was constructed after April 10, 1901, the exact time being the year 1906, the evidence being undisputed that it .was commenced and completed within that year, so that all of the conditions to entitle the plaintiff to the possession and occupation of the, premises, exactly as she purchased them, have been fulfilled. Whether the statements were made by the defendant or not, whether they were true at the time they were uttered, 'is of ■ no consequence to-day, because the plaintiff, in the possession of the premises, has neglected to act until the statements, for all practicable purposes, have become true. Whatever may have been her' rights at the time of the alleged trouble, in 1908, she elected to remain in possession and to stand upon her rights under her title from the defendants, and when the Legislature in 1909 established a short statute of limitations, the effect of which was to permit her to continue to occupy the premises the same as though the statute had been complied with, and- when that statute had run, she was exactly in the position in which she would have been if the alleged false statements had been true, and there was no room for any damages. This being true, the plaintiff could have no cause of action against the defendants, and the complaint should have been dismissed. The language of the proviso is broad and comprehensive, and it is the province of a proviso to restrain the enacting clause, and to except something which would otherwise have been within it, or, in some measure, to modify the enacting clause. (Wayman v. Southard, 10 Wheat. 30.) And the “enacting clause,” as understood by the courts, is that part of the statute which enacts any rule or regulation, no matter what particular place it may occupy in the enactment, (United States v. Cook, 17 Wall. 168,176.) Here we have a general statute, enacting rules and regulations for tenement houses, with a proviso that under certain circumstances a particular class of such tenement houses “ shall be permitted to be occupied in the same manner as if a certificate had been issued that such tenement house conforms in all respects to the requirements of this chapter.” Obviously the intent of this provision was to take out of the operation of the statute such tenement houses as had been constructed after the enactment of the original Tenement House Act of 1901 (Chap. 334), where there had been a human occupation for two years preceding the first day of January prior to the amendment, and no action or proceeding was taken to enforce the statute within six months after the passage of the amendment, and any one who had been in possession of a tenement house during the time, and who has all of the benefits which could have come if the house complied with the law, is not in a position to complain of an alleged fraud committed in 1906, and which had been acquiesced in until the Legislature had prevented any possible damage from the alleged fraud. The plaintiff, at the time of bringing this action, had exactly what she contracted for; she had the building which was. displayed to her, with the capacity which was then stated, and which complied with the requirements of the law, and this is all she had a right to claim or enjoy.

The judgments in both cases should be reversed and new trials' granted, costs to abide the final award of costs.

Hirschberg, Burr, Thomas and Rich, JJ., concurred.

Judgments reversed and new trials granted, costs to abide the final award of costs.  