Opinion
December 15, 1926.
Appeal from the Municipal Court, Borough of Manhattan, Ninth District.
Alfred Ekelman [ John F. Keating of counsel], for the appellant.
Thomas W. Constable, for the respondent.
As the occupation of the demised premises, by reason of the violation of zoning and building department regulations, was unlawful, the tenant was justified in rescinding the lease and abandoning possession, and no recovery can be had by the landlord for rent during such unlawful occupation or by the tenant for rent paid. Since it does not appear that after the making of the lease the landlord could not have obtained the necessary departmental permits, the lease itself was not unlawful in its inception, and the tenant is entitled to recover the deposit made to secure performance of the lease.
Judgment reversed, with $30 costs, and complaint dismissed on the merits, and judgment directed for defendant for $229.17, with interest and costs.
All concur; present, DELEHANTY, LYDON and O'MALLEY, JJ.