
    Stanley W. Hayter, Respondent, v. Sarah Gotthelf, Appellant.
    Supreme Court, Appellate Term, First Department,
    June 9, 1960.
    
      Abraham Lebenkoff and Jules E. Coven for appellant. Paul F. Starace for respondent.
   Per Curiam.

Although there appears to be on record a vacate order issued by the Department of Housing and Buildings, dated June 24, 1954, the building has been occupied without further action being taken by said department. Moreover, the report of a building inspector dated October 11, 1959 contains a statement: “ Building is in good repair Since the landlord and his agent entered into a lease for the premises described as being “ in good repair ”, with this tenant on January 29,1959 for the period from February 16, 1959 to February 28, 1961, notwithstanding the existence of the alleged vacate order, it was incumbent upon the landlord to establish that the vacate order was still effective. In the absence of such proof landlord has failed to establish his right to a final order within the meaning of subdivision 3 of section 52 of the State Rent and Eviction Regulations.

The final order should be reversed, with $30 costs, and petition dismissed, with costs, without prejudice.

Concur — Hofstadter, J. P., Hecht and Aurelio, JJ.

Final order reversed, etc.  