Opinion
April 22, 1952.
Present — Glennon, J.P., Cohn, Callahan, Shientag and Heffernan, JJ.
The petition for an increase in rent was dismissed by the Referee hearing the proceeding on the ground that at the time of the settlement of the order the income from the entire premises was sufficient to provide a reasonable return. We do not have before us the testimony upon which that finding was based. However, there was evidence upon the trial that as of the date of the application some increase in rent was warranted and the Referee so found. We agree with that finding though not necessarily with the amount of increase originally suggested by the Referee. The question of the necessity for an increase of rent must be determined as of the date of the application. (See Matter of Flatto [ Sandler], 279 App. Div. 714, and Matter of Fifth Madison Corp. [ Arthur Murray, Inc.], 301 N.Y. 772.) It was error, therefore, to dismiss the petition and we unanimously reverse the order of dismissal and direct a retrial of the proceeding. We do not pass upon the question as to whether the trial court might make any provision for modification of the increased rents in the event that there be proof that after a given date the rent from the entire premises would furnish a reasonable return without any increase from the present tenants. Settle order on notice.