Opinion
January 11, 1933.
Appeal from the Municipal Court, Borough of Manhattan, Fifth District.
Carl J. Austrian [ Warren C. Fielding, Leo C. Fennelly and Edward Mallon of counsel], for the appellant.
Foster Cutler [ A.S. Cutler of counsel], for the respondent.
Having taken possession and occupied under his lease for over two years, and still retaining possession of premises in a building for which a certificate of compliance was obtained from the proper department, it is no defense to the landlord's demand for rent that in certain respects, as to which no violations have been filed, the structure did not comply with the requirements of the Building Code.
With regard to the illegal occupancy of the so-called pavilion, the premises demised were "those certain rooms known as apartment 21-A and pent house A on the twenty-first and roof floor of the building" — a description which does not expressly include the pavilion in the tower. Assuming, without deciding, that the pavilion, which was not usable for dwelling purposes, was within the terms of the lease, there does not appear any objection to its use for other than living purposes; no violation because of any existing occupancy was filed; the proposed use as disclosed by the amended plan filed prior to the beginning of this proceeding was approved by the tenement house department, and apparently the occupation thereafter conformed to the requirements of the department.
It follows that no defense was made out, and the dismissal cannot be sustained.
Final order reversed, with thirty dollars costs, and final order directed for the landlord for the possession of the premises, with costs.
All concur; present, LYDON, FRANKENTHALER and UNTERMYER, JJ.