
    Baum Residence Corporation, Respondent, v. Peggy Van Rosson, Appellant.
    Supreme Court, Appellate Term, First Department,
    May 27, 1954.
    
      Alexander Michael Fox for appellant.
    
      Morris J. Goldston for respondent.
   Per Curiam.

The trial judge should have granted the motion to dismiss made at the close of all the evidence. The bar against recovery of rent set forth in section 302 of the Multiple Dwelling Law; for the period during which a dwelling is occupied, when no certificate of occupancy as required by section 301 thereof has prior thereto been obtained, comprehends within its prohibition any action to recover for the use and occupation of the premises, however denominated. Such circumvention of the statute cannot be countenanced.

The judgment should be reversed, with $30 costs, and complaint dismissed, with costs.

Hammer, J. (dissenting).

I dissent and vote for affirmance. The registered monthly rental for the apartment unfurnished was $60. This amount had been tendered by tenant and refused by landlord. The landlord demanded and sued for $85.50 per month as for a furnished apartment. The evidence accordingly sustained the finding of $60 per month for use and occupation.

Hofstadter and Eder, JJ., concur in Per Curiam memorandum ; Hammer, J., dissents in memorandum.

Judgment reversed, etc.  