
    In the Matter of Manuel Jimenez, Respondent, against Charles G. Coster et al., Constituting the Temporary City Housing Rent Commission of the City of New York, Appellants.
    First Department,
    March 14, 1950.
    
      Julius Raffelson of counsel (Joseph Jay and Alfred Weinstein with him on the brief; Nathan Math, attorney), for appellants.
    
      Edward Davis of counsel (Irvin Husin and Marvin W. Levy with him on the brief; Wald Husin Miller Levy & Davis, attorneys), for respondent.
   Per Curiam.

Petitioner-respondent is required by section 83 of the Multiple Dwelling Law to have a resident superintendent in this apartment house. There is no available space therein for a resident superintendent unless one of the tenants is removed. Petitioner has applied to evict a tenant who is not in actual occupation of his apartment, but who has permitted its use by a relative by marriage. The city rent commission has denied petitioner’s application upon the ground that his present situation is self-created, due to his having let the apartment which had been occupied by the owner of the premises before petitioner purchased the property. The cases are distinguishable where, under such circumstances, the purchaser has sought afterwards to remove a tenant to obtain space for occupancy by himself. Here, he is obliged to obtain space for a superintendent in order to avoid a continuing violation of law. Special Term correctly held that this constituted compelling necessity.

The order overruling the action of the rent commission, and directing it to issue a certificate of eviction to the petitioner should be affirmed, with $20 costs and disbursements.

Dore, J.

(dissenting). The evidence supports the city housing rent commission’s determination. The condition of which petitioner, landlord, complains is of his own making. Section 83 of the Multiple Dwelling Law was in effect when petitioner purchased the premises on May 21,1948. By the terms of that statute the owner was required to have a janitor, housekeeper or some other person responsible on behalf of the owner residing in the premises which was a multiple dwelling containing thirteen or more families. An apartment was available when the seller, who himself had serviced the building, moved on July 13, 1948. Ignoring the mandate of section 83, this petitioner then rented that available apartment to a rent-paying tenant, thus leaving the premises without a resident janitor. He now seeks to evict another tenant. On the state of facts disclosed, the commission properly denied the certificate of eviction.

The order appealed from should be reversed, with costs and disbursements to appellants and the determination of the temporary city housing rent commission denying petitioner a certificate of eviction should be confirmed.

Pegk, P. J., Callahan and Van Voorhis, JJ., concur in Per Curiam opinion; Dore, J., dissents and votes to reverse in an opinion in which Cohn, J., concurs.

Order affirmed, with $20 costs and disbursements to the petitioner-respondent.  