(dissenting). I dissent and vote to affirm.
A landlord has a right to rent vacant premises for professional instead of dwelling purposes where there is no intent *402to practice subterfuge and circumvent the statute. Upon the evidence here, this landlord entered into a lease with the tenant in good faith, relying on her representations, both oral and written, that she was a free-lance writer and would occupy the premises for professional purposes. This followed an advertisement of a real estate broker offering the premises for professional use. It is not disputed that other apartments in the same building have been and are so leased.
After the lapse of three years, the tenant reverses her position and now claims that she made her representations and entered into the lease with mental reservations that the apartment would not be used for professional purposes, and now seeks to recover back with penalties excessive rent allegedly paid. The record establishes that the landlord acted honestly and in good faith, and was deceived by a prospective tenant into believing that the premises were being hired and were to be used for a professional use and not for residential use, and that there was here no intent to evade the statute.
In my view, the determination of the Appellate Term which reverses the final order of the Municipal Court on the ground that it is against the weight of the evidence and contrary to law was fully warranted.
Callahan, Breitel, Botein and Rabin, JJ., concur in Per Curiam opinion; Cohn, J. P., dissents and votes to affirm in opinion.
Determination and order of Appellate Term reversed and judgment of Municipal Court reinstated. Settle order. [See post, p. 942.]