Opinion
December 24, 1926.
Appeal from the Municipal Court, Borough of Manhattan, Third District.
Copal Mintz, for the landlord, appellant.
Maxwell H. Cheeger, for the tenant, respondent.
James A. Turley, for the undertenants, respondents.
Present — BIJUR, O'MALLEY and LEVY, JJ.
The court's finding that there was no violation cannot be sustained. The person who, according to the landlord's evidence, authorized the illegal acts, was concededly a partner in the business of the undertenants. He was not called to deny the testimony of the landlord's witness and there was no proof to show that he was unavailable. In these circumstances the mere negative testimony of the witness called was insufficient to rebut the landlord's prima facie case, especially as the manner of conducting the business did not preclude a sale of which he might have no direct knowledge.
Final order reversed, with thirty dollars costs, and final order awarded the landlord for the possession of the premises described in the petition, with costs.
I am in complete agreement with the majority that the final order should be reversed, but I do not agree that here we may grant the landlord the final order. The per curiam carries criticism of the tenant for failure to call as a witness the person who authorized the illegal acts, so called. Should not the tenant have this opportunity upon a new trial? I think he should.