Opinion
282 A.D. 573 125 N.Y.S.2d 247 LEON BOHN, Appellant, v. 434 EAST 59TH STREET, INC., Respondent. Supreme Court of New York, First Department. November 10, 1953
APPEAL, by permission of the Appellate Term of the Supreme Court in the first judicial department, from a determination of said court, entered March 26, 1953, which (1) reversed a judgment of the Municipal Court of the City of New York, Borough of Manhattan (MARKS, J.), in favor of plaintiff for $475 plus $125 counsel fee plus costs and disbursements, and (2) dismissed the complaint.
COUNSEL
Ludwig M. Wilson of counsel (Samuel Balk on the brief; Samuel R. Kurzman, attorney), for respondent.
Ralph J. Schwarz, Jr., of counsel (Fink, McNamees&sPavia, attorneys), for appellant. Beatrice Shainswit of counsel (Robert H. Schaffer, attorney), for State Rent Commission, amicus curiae.
Per Curiam.
The appellant sued to recover rental overcharges of $475 with treble damages. The jury returned a verdict for single damages and upon appeal the Appellate Term reversed the judgment and dismissed the complaint.
The appellant occupied an apartment on the premises of the respondent from September 15, 1950, to September 30, 1951, pursuant to a written lease which provided that the apartment was to be occupied as 'living quarters and executive offices'. The stipulated rent was $110 per month. Some five months previous to September, 1950, a commercial rent of $125 a month had been fixed pursuant to a commercial arbitration with a prior tenant and confirmed by an order of the Supreme Court. The registered maximum residential rent was $62.50 a month.
The trial court submitted to the jury the factual issue of whether the apartment was in fact intended and actually used for residential or commercial purposes. The respondent took no exceptions to the charge and submitted no requests. Implicit in the verdict of the jury was a finding that the intended and actual use of the apartment was for residential purposes.
The fixing of a commercial rent pursuant to law does not deprive a subsequent residential tenant of the protection of the residential rent control and the maximum rent established thereby. (Cf. Powell v. Park Lex. Realty Corp., 280 A.D. 136, affd. 304 N.Y. 960.)
The order of the Appellate Term should be reversed and the judgment of the Municipal Court reinstated, with costs to appellant and an allowance to the appellant of an additional counsel fee in the sum of $125.
PECK, P. J., DORE, CALLAHAN, BREITEL and BASTOW, JJ., concur.
Determination unanimously reversed in accordance with the opinion herein. Settle order on notice.