
    C. Leo Calarco, Petitioner, v. Charles G. Coster et al., as Commissioners of the Temporary City Housing Rent Commission of the City of New York, Respondents.
    Supreme Court, Special Term, New York County,
    March 22, 1949.
    
      
      Calarco and Popolizio for petitioner.
    
      Nathan W. Math for respondents.
   Eder, J.

Motion to annul determination of respondents and to direct issuance of certificate of eviction is granted. The applicant seeks possession of an apartment for his own immediate and personal use and occupancy for dwelling purposes. The applicant presently resides with his wife in a one-room basement apartment. Applicant is the owner of a three-story building including an apartment on the first floor consisting of a living room, bedroom, kitchen and bath. One Virginia L. G-ahagan, also known as Copeland, is the occupant of said apartment, or rather, was.

It appears, without dispute, that she has failed to occupy said apartment for more than six months; that she has married and is now living with her husband on the west coast. The apartment is now supposedly occupied by one Helen L. Leary, as a “ guest ”. She has a phone installed in her own name.

It is apparent this is a subterfuge and that the apartment has been abandoned by the original occupant who has clandestinely put this so-called “ guest ” in possession or sublet to her. The applicant has shown his imperative need for adequate dwelling space and in the situation disclosed the refusal to issue to him a certificate of eviction is unjustified and unreasonable, and is held, in the circumstances, to be arbitrary and capricious.

While it is true that the city rent laws were enacted to protect. “ tenants ” in possession against unnecessary evictions, and this court has co-operated with the commission to carry out the intent of such laws, it is equally true that landlords have rights which must be given due consideration, respected and enforced. “ Tenants ” out of possession, as here, have no right to the benefits intended to be conferred by such law. Settle order.  