In re Rutherford Estates, Ltd.

Since the fixing of rent at Special Term in this case, under the square foot alternative method provided by subdivision 2 of section 4 of the Commercial Rent Law, the *2law has been amended to limit any increase in rent under this provision to 15% (L. 1950, ch. 327). The amendment was made to take effect immediately and the limitation was explicitly made applicable to pending proceedings. Appellants are willing to pay the 15% increase, but respondent contends that the limitation is not applicable to the instant case because a proceeding should not be considered pending after its determination by the trial court, although an appeal is pending. Respondent also points to a report of the New York State Temporary Commission to Study Rents and Rental Conditions, which proposed this amendment, which report states that as modified the provision includes all pending actions and proceedings but is not intended to include cases on appeal. Whatever may have been the intention of that commission at the time the amendment was suggested, the amendment as adopted expressly embraces pending proceedings without qualification, and we take the view that the limitation was intended to apply to all proceedings not finally determined.

Were we to agree with respondent on this point, however, the ruling would be academic as applied to this case because we would be obliged to remand the case for further proceedings in accordance with our decision in Matter of Barry Equity Corp. (Marcia Hat Co.) (276 App. Div. 685). The proceeding would certainly then become a pending proceeding and the 15% limitation would apply. Under the circumstances, it is unnecessary to remand the case and the order appealed from should be modified to fix the rent for the respective tenants as follows:

Name of Tenant Rent

Dorman Products Inc......................$2,396.37

Chelsea Elevator Co....................... 2,898.00

Lobby Display & Frame Corp.............. 2,666.09

The order appealed from should be modified accordingly and, as so modified, affirmed, without costs. Settle order.

(dissenting in part). For the reasons stated in my dissent in part in Matter of Barry Equity Corp. (Marcia Hat Co.) (276 App. Div. 685), I dissent in part as to the effective date the rents take effect and vote to modify to make them effective as of the date of decision instead of the date of application.

Peck, P. J., Caulahan, Van Voorhis and Shientag, JJ., concur in Per Curiam opinion; Dore, J., dissents in part in opinion.

Order modified in accordance with opinion herein and, as so modified, affirmed. Settle order on notice.