(dissenting). I think it is error to assume that the tenant “ as required of him by the lease,” applied to the proper municipal authorities for a permit to erect the structures necessary, which “ was refused, as it would be a violation of the zoning law provisions * * *.” By the 20th paragraph of the lease the “ tenant covenants and agrees that before he erects any structure of any kind upon the demised premises, he shall first secure the necessary permits from the municipal and state authorities; * * All he did in this direction was to approach the fire department. Can this b.e said to be a full discharge of his obligation under the covenant? Or, on the other hand, can the refusal there be regarded as such a repudiation by duly constituted authority as to determine the illegality of the business contemplated? In the first place, the record does not disclose whether the garage was to be for more than five motor vehicles. If it was to contain less, the Building Zone Law would not seem to have any application whatever.
But even if we accept the inhibitions of the Building Zone Resolution as controlling, it strikes me that very definite exemptions therein provided might be granted under certain proper circumstances by the board of appeals under section 7 of the very statute, and more particularly by such subdivisions as “ e,” “ f ” and “ g.” However, no application was made to this board, and who is in position to say in advance what disposition would be made there?
I consider this case differs from those in which the purpose for which premises are demised.is per se illegal; as, for example, the leasing of part of a tenement house for the use of a moving picture theatre when the ordinances prohibited it, as demonstrated in Adler v. Miles (69 Misc. 601); also, those cases involving premises leased for the sale of intoxicating liquor. There the decisions were predicated on the general rule that where the law creates a duty and a party without fault on his part is disabled from performing it, such failure to perform is excused.
But here I do not feel we are in position to justly declare that the *611business provided for by the lease is prohibited by law absolutely and thus void. It occurs to me that this could not be accurately said of the venture here involved until the municipal authorities having jurisdiction have actually functioned and determined against the use of the premises for the purpose intended. In any event, the landlord would appear to be entitled to rent until it be established unequivocally that the tenant could not secure that which would entitle him to prosecute the business. Therefore, I dissent and vote to affirm.