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U.C.L. REALTY CO., Landlord, Respondent, v. JAMES BROWN, Tenant, Appellant.

Per Curiam.

The landlord has failed to show that the tenant is using or occupying his apartment as a gambling house or for any illegal purpose within the purview of subdivision 5 of section 1410 of the Civil Practice Act. Under that section the term "use" implies the doing of something customarily or habitually, or making a practice of doing a certain act, and the single act of the tenant alleged in this case is insufficient to warrant recovery of possession ( Estate of Shaff v. Stein, 171 Misc. 376).

The final order should be reversed, with $30 costs, and petition dismissed, with costs.

HAMMER, HOFSTADTER and PECORA, JJ., concur.

Final order reversed, etc.

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U.C.L. REALTY CO. v. BROWN
(Dec 2, 1948)