
    Schotz-Powers Company, Inc., Respondent, v. Adolph Treidler, Appellant.
    Supreme Court, Appellate Term, First Department,
    December 15, 1926.
    Landlord and tenant — tenant justified in rescinding lease and abandoning premises where occupancy violated zoning regulations — landlord not entitled to rent for occupancy nor is tenant entitled to rent paid — tenant may recover deposit made to secure performance of lease.
    Where the occupation of premises, by reason of the violation of zoning regulations, was unlawful, the tenant is justified in rescinding the lease and abandoning possession, and for that reason the landlord is not entitled to recover for rent during the unlawful occupation of the premises, nor is the tenant entitled to recover the rent paid.
    In the absence of proof that the lease itself was unlawful in its inception, the tenant is entitled to recover the deposit made to secure performance thereof.
    Appeal by defendant from a judgment of the Municipal Court, Borough of Manhattan, Ninth District, in favor of the plaintiff.
    
      Alfred Ekelman [John F. Keating of counsel], for the appellant.
    
      Thomas W. Constable, for the respondent.
   Per Curiam.

As the occupation of the demised premises, by reason of the violation of zoning and building department regulations, was unlawful, the tenant was justified in rescinding the lease and abandoning possession, and no recovery can be had by the landlord for rent during such unlawful occupation or by the tenant for rent paid. Since it does not appear that after the making of the lease the landlord could not have obtained the necessary departmental permits, the lease itself was not unlawful in its inception, and the tenant is entitled to recover the deposit made to secure performance of the lease.

Judgment reversed, with $30 costs, and complaint dismissed on the merits, and judgment directed for defendant for $229.17, with interest and costs.

All concur; present, Delehanty, Lydon and O’Malley, JJ.  