Opinion
June 14, 1962
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, JOHN J. MANGAN, J.
Levine Cowen ( Morton P. Cowen of counsel), for appellant.
The term "use" of premises for illegal purposes implies doing of something customarily or habitually upon the premises. The evidence, therefore, must reveal customary and habitual illegal use of the premises by the tenant ( U.C.L. Realty Co. v. Brown, 193 Misc. 801; Florgus Realty Corp. v. Reynolds, 123 Misc. 161; Tenement House Dept. of City of N.Y. v. McDevitt, 215 N.Y. 160; 167 East 86th St. Corp. v. Wienecke, 132 Misc. 491; Lazarowitz v. Kazan, 122 Misc. 202; Janowitz v. Jenkins, 8 Misc.2d 1077; Estate of Shaff v. Stein, 171 Misc. 376). The evidence by landlord here fell far short of establishing such use. The single, isolated conviction for possessing policy slips was not sufficient to establish that tenant was using the premises for an illegal purpose or use within the meaning of subdivision 5 of section 1410 of the Civil Practice Act or of subdivision 4 of section 52 of the State Rent and Eviction Regulations.
The final order should be reversed, with $30 costs, and final order directed in favor of tenant, with costs.
Concur — HECHT, J.P., HOFSTADTER and TILZER, JJ.
Final order reversed, etc.