Reynolds v. Feinstein ( 1947 )

Memorandum

Per Curiam.

It was error to dismiss the petition without prejudice. The landlord’s petition was sufficient in form and the proof established that the tenant, whose ceiling rent was $100 a month and was a monthly tenant, made a lease for more than two months to a third party for a total rent of $2,500. The landlord testified that the person to whom the tenant gave the lease was in possession. The lease by the tenant constituted an assignment of his interest in the premises. The tenant, out of possession after the assignment, could not claim protection of the rent regulation. That regulation was intended to help tenants keep possession. It was never intended to permit a monthly tenant to go out of possession with a handsome profit and return to possession upon discovery by the landlord of the assignment. When the tenant made the assignment and went out of possession he was entitled to no notice to desist. After the assignment presumably if the tenant was in possession he was in by permission of bis assignee. It cannot be assumed that upon receiving many times the rent he was obliged to pay he kept the assignee out of possession.

The final order should be unanimously reversed on the law and new trial granted, with $30 costs to the landlord to abide the event.

MacCrate, Steinbrink and Fennelly, JJ., concur.

Order reversed, etc.