. The building had been vacated on order of the Department of Buildings two days before the application for the appointment of a receiver was heard because of a fear that the building might collapse and endanger the occupants — who, planning to return when the building was rendered safe and habitable, retained their status as tenants (cf. Matter of Austreal Corp. v. McGoldrick, 305 N. Y. 848; also, Temporary State Housing Rent Commission, Operational Bulletin, No. 39, dated Nov. 9, 1960)—but, contrary to intimations by the appellants, that circumstance neither removed the ease from the coverage of the statute nor deprived the court of jurisdiction to appoint a receiver.
Van Voorhis, J.
(concurring). The only question involved on this appeal is, as it seems to me, whether the portion of section 309 of the Multiple Dwelling Law is constitutional which provides for the correction of conditions in deteriorated and deteriorating dwellings of such nature as to endanger the life, health and safety of the occupants, by the appointment of a receiver to apply the rents to the rectification of these conditions. I believe this statute to be constitutional under the police power in view of its relation to the public health and safety due to the need to eliminate such conditions for the protection of the occupants of such buildings. Where I part company with the opinion by Judge Fuld is that I do not subscribe to the dicta therein contained to the effect that it is constitutional by this means to require owners of such buildings to repair them, not merely for the protection of the occupants, but to increase the supply of housing accommodations. Owners of multiple dwellings may not legally be permitted to utilize them for the purpose of economic gain unless they are rendered sanitary