(dissenting). The commission is empowered to promulgate regulations to effectuate the act but no regulation may be in contravention of the statute. Under the State Residential Rent Law no eviction may be had unless the landlord in good faith seeks to recover possession where the lease or rental agreement has expired or terminated and at the time of termination the occupants are subtenants occupying under a rental agreement with the tenant ‘ ‘ and no part of the accommodation is used by the tenant as his dwelling ”. (§5, subd. 2, par. [b].) This statutory provision is the same under chapter 250 of the Laws of 1950 and chapter 443 of the Laws of 1951. Concededly part of the housing accommodation herein is used by the tenant 11 as his dwelling ’ ’. In spite of that the regulation permits eviction. The statute must control.
I entirely agree, however, with the majority that in any event a certificate may not issue where the accommodation is a furnished apartment in which the prime tenant rents one or more furnished rooms.
Accordingly I dissent and vote to reverse the order appealed from.
Cohn, Callahan and Van Voorhis, JJ., concur with Peck, P. J.; Dore, J., dissents and votes to reverse, in opinion.
Order affirmed, with $20 costs and disbursements to the respondent.