
    56-70 58th Street Holding Corp., Respondent, v. Fedders-Quigan Corporation, Appellant.
   In an action by a landlord to recover rent accrued under a lease, the tenant appeals from a judgment in favor of the landlord entered after trial before the court without a jury. Judgment reversed on the law and the facts, with costs, and complaint dismissed, with costs. Findings of fact insofar as they may be inconsistent herewith are reversed and new findings are made as indicated herein. The use of the premises authorized under the lease was inconsistent with the last-issued certificate of occupancy and therefore was unlawful (Administrative Code of City of New York, § C26-185.0). We need not determine whether that fact, standing alone, justified the tenant in rescinding the lease. (Cf. Minton v. D. A. Schulte, Inc., 153 Misc. 195; Mesfree Realty Corp. v. Huyler’s, 153 Misc. 667.) By a covenant in the lease as construed by the parties, the landlord undertook to obtain a certificate of occupancy covering the changed use for which the premises were demised. The time for the performance of that obligation was not limited in the lease but was properly fixed by written notice from the tenant to the landlord. (Taylor v. Goelet, 208 N. Y. 253.) Concededly, the certificate was not issued within the time so limited. In our opinion the covenants to obtain the certificate and to pay the rent were dependent. The landlord, having failed to perform that condition of the lease upon its part, may not recover the rent reserved. (Cf. Rosenthal Paper Co. v. National Folding Box & Paper Co., 226 N. Y. 313; De Angelis v. White-All Corp., 273 App. Div. 873.) Nolan, P. J., Ughetta, Hallinan and Kleinfeld, JJ., concur; Murphy, J., dissents and votes to affirm, with, the following memorandum: The application for the certificate of occupancy for the premises as a warehouse, which certificate the landlord was obligated to obtain under the lease, was approved by the Department of Housing and Buildings on June 8, 1954, as evidenced by Exhibit 3. The certificate was not issued at that time, however, because of the tenant’s storage of combustible materials on the premises. Notice of this situation was not given to the landlord until it received a letter dated June 25, 1954 from the Department of Housing and Buildings. This notice was received only a few days before June 30, 1954, the date set by the tenant’s notice for surrendering the premises unless the certificate of occupancy was forthcoming. The storage of combustibles was not the responsibility of the landlord, which finally succeeded in obtaining the certificate of occupancy on July 8, 1954. When the tenant attempted to surrender the keys to the premises on June 30, 1954 the landlord properly refused to accept them. The tenant’s aetion in vacating the building was wholly unjustified in view of the fact that it was responsible for the storage of the combustibles, and in view of the fact that the landlord would have obtained the certificate of occupancy early in June but for the tenant’s conduct. It should be noted that during the occupancy of the building by the tenant, the landlord made openings in the building so that trucks could pick up and take away goods, and had also put in cement driveways. Furthermore, the city authorities had placed no violations against the premises and had not harassed the tenant in any manner whatsoever.  