In Say-Phil Realty Corp. v. De Lignemare, 131 Misc. 827, 228 N.Y.S. 365 [Mun. Ct. 1928], the lease provided for use of the premises as a drug store in an area zoned for residential use where the use was not permitted.
The lease contained a specific provision making the lease subject to the restrictions of the zoning law.
The court held that the burden of compliance with the zoning code and obtaining the necessary variance and modification was on the tenant.
The tenant's claim of illegality of the lease was rejected by the court.
In Say-Phil, supra, the court further held that the tenant waived any claim of failure of consideration by paying rent for many months and not prosecuting an application to the zoning board of appeals.