Opinion
March 13, 1947.
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, BURNET, J.
Arthur Morris for appellant.
Joseph E. Stearns for respondents.
MEMORANDUM
In this summary proceeding by three petitioners to recover possession of premises under subdivision (d) of section 8 of the Commercial Rent Law (L. 1945, ch. 3, as amd. by L. 1946, ch. 272) the testimony of the landlords shows that the restaurant business is to be operated by a corporation the stock of which is owned by two of the petitioners.
We do not think that the proofs satisfy the requirement of the statute that the owners seek in good faith to recover possession for their immediate and personal use.
Further, the record presents prejudicial error by the ruling of the Trial Judge refusing to submit to the jury the issue as to service of the thirty-day notice on the statutory monthly tenant.
The final order should be reversed, with $30 costs, and petition dismissed, with costs.
I concur in the Per Curiam only to the extent that the issue as to the service of the thirty-day notice should have been left to the jury. I therefore vote for a reversal and a new trial limited to the foregoing issue.
HAMMER and HECHT, JJ., concur in Per Curiam memorandum; SHIENTAG, J., dissents in part in memorandum.