The question that it is sought to have determined upon this reargument relates to the burden of proof in actions and proceedings brought under *327the recent rent legislation. There seems to be confusion. as to this, which may arise out of the provisions of the recent statutes creating a presumption. In chapter 944 of the Laws of 1920, which relates to an action to recover rent, and which provides that in such an action the tenant may plead that the rent is unreasonable, it is further provided that if it appears that the rent sued for is greater than it was one year prior to the time the agreement was made under which the rent was sought to be recovered, the agreement ‘ ‘ shall be presumptively unjust, unreasonable and oppressive.” The first question is whether that presumption applies equally in a summary proceeding to recover possession of property. There is no express provision in any of the recent legislation making such a defense applicable in such a proceeding, but there is the general provision of section 2244 of the Civil Code, boav section 1425 of the Civil Practice Act, to the effect that a defense or counterclaim may be set up and established in a summary proceeding “ in like manner as though the claim for rent in such proceeding was the subject of an action.” Under this provision the presumption referred to becomes available in a summary proceeding because it is one of the ways in which the tenant may establish his defense. Lewine v. Weil, 188 N. Y. Supp. 385.
In an action for rent based upon an agreement or in a summary proceeding the landlord need not establish that the rent sued for or unpaid is reasonable. The reasonableness of the rent is not an issue unless it is made so by the tenant’s pleading. If the tenant pleads .as a defense that the rent is unreasonable then that becomes a question of fact under the recent legislation. And as the tenant asserts the defense of unreasonableness he must prove it. By virtue of the provision creating the presumption already mentioned the ten*328ant does make out a prima facie case of unreasonableness when the evidence shows that the rent sued for or unpaid is greater than it was a year before the agreement sued upon was marie. And if there be no other proof in the case, this presumption will support the tenant’s defense. If, however, there be other proof in the case tending to show that the rent is reasonable, then an issue is created which must be decided by the trier of the facts. But in such case if the trial be before a jury they must be instructed that the burden of proving that the rent is unreasonable is upon the tenant. Where the proof brings into operation the presumption, the landlord, if he would overcome the effect of it, must offer proof to show that the rent is reasonable. And this is all we think was intended by the expressions in Maitland v. Kerrigan, 187 N. Y. Supp. 495, and Klamer Realty Corp. v. Brill, 189 id. 92. But this is not the same as saying the burden of proving the reasonableness of the rent is upon the landlord. That burden is upon the tenant at all times.
The rule, however, would be different if no agreement had been made fixing the amount of the rent and if the landlord sued merely for the reasonable value of the use and occupation. Then, as it would be a necessary part of the landlord’s case to establish what was a reasonable charge for rental, the burden of proving it would be upon him. This was the rule prior to the enactment of the recent rent legislation and it has not been changed thereby.
Final order should be reversed, with ten dollars costs ¿to appellant to abide the event, and a new trial ordered.
Kelby and Lazansky, JJ., concur.
Order reversed.