56-70 58th Street Holding Corp. v. Fedders-Quigan Corp.

Burke, J. (dissenting).

The claim here is solely to recover rental for a period when the tenant was no longer in occupancy. By a covenant, in a two-year lease commencing March, 1953, the landlord assumed the burden of obtaining a certificate of occupancy covering the use of the premises ‘ ‘ by the Tenant for warehousing and shipping of its goods ”. At the time, therefore, that the lease was made, the new use authorized under the lease concededly was unlawful (Administrative Code of City of New York, § C26-185.0; Shontz Co. v. Laffay, 225 App. Div. 263).

The documentary proof shows that the…