Opinion
June 24, 1924.
Harris B. Rothkowitz, for the appellant.
Holley Oxenberg ( Myle J. Holley, of counsel), for the respondent.
The notice to quit was good despite the receipt, prior to the expiration of the lease, of rent for the month of March. It is only when after the expiration of the lease rent is received for a period after expiration that a waiver is presumed. Prindle v. Anderson, 19 Wend. 391. But there is res adjudicata here and it is the law of the case that the notice is bad. For the benefit of the parties upon a possible subsequent proceeding, it may be well to say that in our opinion the rent laws protect the tenant from removal, upon the grounds here, from that part of the premises leased as a dwelling, and that the tenant cannot invoke the rent laws for the other part leased for business by using those premises for dwelling in violation of the lease.
Final order reversed, with thirty dollars costs, and final order directed for the tenant dismissing the petition, with costs.
All concur; present, BIJUR, MULLAN and LEVY, JJ.
Order reversed and proceedings dismissed.