
    Silamar Estates, Inc., a Domestic Corporation, Landlord, v. Saul M. Bien, Tenant.
    Municipal Court of New York, Borough of Manhattan, Fifth District,
    December 2, 1937.
    
      Mantón Marks, for the landlord.
    
      Sidney W. Stein, for the tenant.
   Wilson, J.

This is a summary proceeding brought for the recovery of possession of premises because of failure to pay rent. The tenant sets up the defense that this property has been turned into a multiple dwelling and that the landlord has no right to this proceeding because no certificate of occupancy was issued to the landlord.

Section 301 of the Multiple Dwelling Law, under-heading “ Certificate of Compliance,” states therein: “No building hereafter constructed as or altered or converted into a multiple dwelling shall be occupied in whole or in part for human habitation until the issuance of a certificate by the department charged with the enforcement of this chapter that said building conforms in all respects to the requirements of this chapter.”

Section 302 of the Multiple Dwelling Law, under the title “ Unlawful Occupation,” subdivision 1 thereof, contains the following: “ If any building be occupied in whole or in part for human habitation in violation of the last section, during such unlawful occupation any bond or note secured by a mortgage upon said building, or the lot upon which it stands, may be declared due at the option of the mortgagee. No rent shall be recovered by the owner or lessee of such premises for said period, and no action or special proceeding shall be mantained therefor, or for the possession of said premises for non-payment of such rent.”

Under the facts as presented at the trial herein and the Multiple Dwelling Law, I am, after careful consideration, constrained to dismiss this proceeding and it is so ordered.  