
    Morris I. Halperin, Plaintiff, v. McCrory Stores Corporation, Defendant.
    Supreme Court, Kings Special Term,
    November, 1922.
    Landlord and tenant — city of New York — lease — provision that landlord shall furnish heat and elevator service — when injunction will issue restraining him from cutting off heat at half past five P. M. — Sanitary Code, § 225.
    Where one or more persons are employed in a building in the city of New York, occupied as a business establishment under leases which though providing for both the use of the elevator and the furnishing of heat are silent as to the time within which heat should be furnished, the landlord under section 225 of the Sanitary Code is bound to furnish heat and elevator service during the working hours of each day whenever the street temperature falls below fifty degrees Fahrenheit.
    An injunction to restrain the landlord from cutting off the heat at five-thirty p. m. during week days and at one p. m. on Saturdays and stopping the use of the elevator at six p. m. will be granted.
    Motion for injunction.
    
      Richards, Smyth & Conway (.Albert Conway, of counsel), for plaintiff.
    
      Bandler, Haas & Collins {John F. Collins and Arthur C. Kahn, of counsel), for defendant.
   Lewis, J.

The leases provide for the use of the elevator and also to furnish such heat to the demised premises as the plant at present installed will provide.

After the making of the leases, and in 1922, the heating system was changed.

The question for determination is whether the plaintiff, as tenant, is entitled to heat and elevator service during certain seasons of the year for twenty-four hours, or whether the defendant has the right to cut off the heat at five-thirty p. m. during week days and one p. m. on Saturdays and stop the elevator at six p. m.

It is contended that the practical construction put upon the covenants of the lease by the parties should govern its interpretation.

The affidavits in support of the motion satisfy me that prior to the transfer of the premises to the defendant heat and elevator service were furnished by the Bailey Company, the former landlord, to the plaintiff during certain seasons for twenty-four hours in each day.

The Sanitary Code, section 225, provides that

It shall be the duty of every person who shall have contracted or undertaken, or shall be bound, to heat, or to furnish heat for any building or portion thereof, occupied as a *• * * business establishment where one or more persons are employed, to heat, or to furnish heat for every occupied room in such building, or portion thereof, so that a minimum temperature of sixty-eight (68) degrees Fahrenheit may be maintained therein at all such times. * * *

“ The term ‘ at all such times as used in this section, unless otherwise provided by a contract or agreement, shall include the time * * * during the usual working hours established and maintained in a building, or portion thereof, occupied as a business establishment, of each day whenever the outer or street temperature shall fall below fifty (50) degrees Fahrenheit.”

The leases are silent as to the time within which heat should be furnished.

A construction which is consistent with and not repugnant to a statute or ordinance should be adopted.

In view of the ordinance and the affidavits, it seems to me that the application should be granted.

The motion for an injunction is granted.

Ordered accordingly.  