Opinion
Argued October 11, 1951
Decided December 6, 1951
Appeal from the Supreme Court, Appellate Division, Second Department, WILLIAM R. WILSON, Off. Ref.
Victor Whitehorn and Jules Whitehorn for appellants.
Orrin G. Judd, Martin S. House and Morris A. Wirth for respondent.
Quite apart from other considerations, the absence of any evidence establishing the gross income received by the landlord from the property — recitals in a bill of particulars do not constitute proof (see, e.g., Roscoe Lbr. Co. v. Standard Silica Cement Co., 62 App. Div. 421, 423-424) — prevents the proceeding, concededly brought as an alternative square foot proceeding (Business Rent Law, § 4, subd. 2; McKinney's Unconsol. Laws, § 8554, subd. 2), from being considered or treated as one under the original net fair return provision of the statute. (Business Rent Law, § 4, subd. 1; L. 1945, ch. 314, as amd.; McKinney's Unconsol. Laws, § 8554, subd. 1; see Matter of Relmar Operating Corp. [ Roffer], 297 N.Y. 609; Matter of Court Square Bldg. v. City of New York, 298 N.Y. 380; Matter of Fifth Madison Corp. [ Gilden-J.B. Doblin, Inc.], 301 N.Y. 772.) That being so, the rental to be allowed the landlord was to be fixed at an amount not "in excess of fifteen per centum greater than the amount of the rent being paid by the tenant" (Business Rent Law, § 4, subd. 2, as amd. by L. 1950, ch. 326; McKinney's Unconsol. Laws, § 8554, subd. 2), and, accordingly, the 15% limitation imposed by the referee on the rent increases granted to the landlord should not have been eliminated.
The order of the Appellate Division should be reversed, and that of Special Term affirmed, with costs in this court and in the Appellate Division.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE, FULD and FROESSEL, JJ., concur.
Ordered accordingly. [See 303 N.Y. 803.]