
    Delia McNamara, as Administratrix of the Goods, Chattels and Credits of Charles H. McNamara, Deceased, Appellant, v. Theodore Rings, Respondent.
    (Supreme Court, Appellate Term, Second Department,
    April, 1913.)
    Landlord and tenant—lease of building as a private garage—what constitutes an eviction.
    Where municipal regulations, after a wooden building has been leased as a private garage, prohibited the issuing of garage permits for buildings not fireproof for storing gasoline, in addition to that contained in the tanks of vehicles, or the storing of motor vehicles except in buildings having a garage permit, the use of a building for a garage is not necessarily prevented so as to constitute an eviction; for while it might be convenient to store gasoline in a public or private garage it cannot be considered necessary in a private garage.
    
      Appeal from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, fourth district.
    Fromme Brothers, for appellant.
    Lewis A. Rosen, for respondent.
   Per Curiam.

This was an action for rent. The defense was an eviction caused by a regulation of the municipal explosives commission, passed after the leasing, which it was claimed prohibited the use of the premises for garage purposes.

The only evidence was the lease, testimony that the rent in question had not been paid, that the building was of wood and, therefore, not fire proof, and sections 366 to 370 inclusive of article XI of the regulations of the municipal explosives commission, adopted after the lease was made. There is nothing in the regulations introduced in evidence which necessarily prevents the use of the premises as a garage. It is true that a motor vehicle containing volatile inflammable oil cannot be stored except in a building for which a garage permit shall have been issued. But in the sections of the regulations offered in evidence there appears nothing to prevent a garage permit for these premises, except one allowing the storage of volatile inflammable oil. While it may be convenient to store gasoline in a public or private garage, we cannot say that it is necessary, certainly not in a private garage. The regulations apparently make a difference between keeping motor vehicles containing volatile inflammable oils and storing such oil. It is only where the permit allows storing such oil in addition to that contained in the tanks of the vehicles that section 370 prohibits issuing permits for buildings not fire proof. If it should appear on a new trial either that the storage of volatile inflammable oil is necessary to the maintenance of such a garage as the parties contemplated, or that the fire commissioner refuses a garage permit which does not allow the storage of such oils, then the tenant might justly claim an eviction. Judgment reversed and a new trial ordered, with costs to abide the event.

Present: Garretson, Blaokmar and Kapper, JJ.

Judgment reversed and new trial ordered, with costs to abide event.  