
    Walter R. F. Vail, Appellant, v. York Hill Properties, Inc., et al., Respondents.
   Determination affirmed, with costs to the respondents. No opinion. Concur — Breitel, J. P., Valente and Bastow, JJ.; Cox and Prank, JJ., dissent and vote to reverse and order a new trial in the following memorandum: The determination of the Appellate Term should be reversed and this matter sent back to the Municipal Court for a new trial. There was no proof offered in the Municipal Court to show that the premises were located in a residential district which fact certainly should have been known to the defendants. The tenant, regardless of his intention, was not permitted to use the premises for a business use and should not be compelled to pay for that which he could not enjoy. No consideration was given to the fact that when the landlord was informed that the premises could not be used for commercial property, he took no steps to reduce the tenant’s rent to the amount fixed by the Rent Administrator. (Sylvester v. Bernstein, 283 App. Div. 333, affd. 307 N. Y. 778.)  