
    F. W. G. Realty Co., Inc., Respondent, v. Abe Essig, Appellant.
    Supreme Court, Appellate Term, First Department, February Term —
    Filed March, 1922.
    
      Landlord and tenant—New York city — housing laws—erroneous charge that landlord is entitled to ten per cent return.
    
    Appeal by defendant from judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, entered on verdict in favor of plaintiff.
    
      Oscar J. Smith (Robert M. Simpson, of counsel), for appellant.
    
      Hirschman & Boeder (Jehial M. Boeder, of counsel), for respondent.
   Per Curiam.

In this action to recover from defendant rent under lease of an apartment the defendant set up the statutory defense, and the trial court charged the jury over defendant’s exception, “ as matter of law that 10 per cent, on real property in the City of New York is a reasonable return, and that the landlord is entitled to an allowance of at least 10 per cent, upon his property in the City of New York at the present time. * * * If you are willing to put your approval on the repudiation of a written instrument you will find for a less rental than the amount demanded, but if you believe that tenants in this city should live up to their written agreements, then you will find a verdict in favor of the landlord for the full amount.” The learned court, under the construction placed by it upon certain rulings of our courts construing the housing laws, established or attempted to establish a fixed and definite percentage of return which realty owners are entitled under said laws to charge as rental, thereby inferentially condemning the defense created by the legislature to meet the housing emergency.

Judgment reversed and a new trial ordered, with thirty dollars costs to appellant.

All concur.

Judgment reversed.  