The complaint alleges that the maximum residential rental under the State Residential Rent Law (L. 1946, ch. 274, as amd.) of an apartment at 340 West 72nd Street in which plaintiffs were tenants and defendant was landlord, was the sum of $85 a month, and that a registration statement to that effect had been duly filed and registered with the appropriate authorities. The lease between the parties, executed June 15, 1949, was for $135 a month.
The lease recited that the tenant “ shall use and occupy * * * [the] premises” for “ the practice of Cosmetology * * * and for no other purpose, except the occasional use of one (1) room for residential purposes.”
The court at Trial Term was of opinion that this form of lease was a subterfuge for the real intent of the parties to rent the apartment for residential purposes and ‘ ‘ to frustrate the protection afforded tenants by law.” Treble damages were awarded plaintiff in the sum of $1,500 and a counsel fee of $350.
Defendant had the right to change the use for which he rented his apartments from residential to professional or business usage if the change was effected in good faith and not a mere mask to evade the residential rent ceilings. No question of violation of zoning regulations is involved on the appeal.
From the experience of some other tenants of defendant who testified, there is rather strong proof that “ professional ” use of apartments for purposes such as i£ voice culture ” or £ 1 dramatics ’7 was written into leases to permit the penetration of rent ceilings under circumstances where actual occupancy continued residential and not at all professional.
*289But the difficulty here is that the witnesses for the plaintiffs presented a better case from their experiences than the plaintiffs were able to show under their complaint. There was an actual professional use of the premises rented to plaintiffs for the practice of cosmetology. This art, as professionally practiced by plaintiff Shirley Vojda, shown in the record to be the “ scientific ” removal of hair from the body by an electric process, is also called “ electrolysis.”
The proof is that Mrs. Vojda practiced this art at 645 Madison Avenue before she moved in the apartment in issue here and that she continued to practice it with the necessary equipment in the apartment rented by defendant, earning from $30 to $70 a week —“ an average of fifty dollars, I would say.”
Thus the earnings from the work carried on in the apartment exceeded the rent received, and while the apartment was used also by plaintiffs as living quarters, we are of opinion that the finding of the court of a willful violation of the statute is against the weight of the evidence and that the judgment for treble damages and counsel fees should be reversed and judgment directed for the defendant.