Opinion
March 10, 1949.
Appeal from the Municipal Court of the City of New York, Borough of The Bronx, CRAIG, J.
Frederick Behr and Frederick Behr, Jr., for appellant.
Nathan W. Math, Joseph Goldberg, Joseph Jay and Alfred Weinstein for Temporary City Housing Rent Commission, amicus curiae.
Having entered into possession with permission of the one entitled to possession, respondent is not a squatter or intruder within the provisions of subdivision 4 of section 1411 of the Civil Practice Act. ( Williams v. Alt, 226 N.Y. 283; Frazier v. Cropsey, 124 Misc. 367.) Birdie Management Corp. v. Dunton (60 N.Y.S.2d 673) is distinguishable, as there the decision was based upon an unlawful entry. Failure to obtain a certificate from the city rent commission authorizing institution of this proceeding also required dismissal of the petition.
The final order should be affirmed, without prejudice to the institution of a new proceeding upon obtaining certificate of eviction from city housing commission.
HAMMER and HECHT, JJ., concur; EDER, J., concurs in result.
Final order affirmed, etc.