Opinion
June 2, 1952.
Present — Nolan, P.J., Carswell, Johnston, MacCrate and Schmidt, JJ.
In this proceeding to fix reasonable rents of business space, pursuant to the Business Rent Law (L. 1945, ch. 314, as amd.) the landlord and the tenants appeal from an order which determines such rents and grants relief to the landlord upon such determination. Order unanimously affirmed, without costs. The tenants are not aggrieved by the order appealed from. While the learned Official Referee included in his computation of cost of maintenance of the property, certain items for legal fees and disbursements in connection with a prior rent proceeding, which should have been disallowed, he also included in his computation of the rent received an item of $15,167.92, which represented anticipated increased rentals, pursuant to the determination of this court in such prior proceeding. Those increases in rent were later disallowed by the Court of Appeals ( 303 N.Y. 358), and the landlord should not be charged with rentals which it will be unable to collect from its tenants. Neither is the landlord aggrieved by the order, since it is the undisputed fact that it has collected, and is collecting, from its tenants a portion of the increased rentals provided by our previous determination, because of the fact that some of its tenants acquiesced in that determination and took no appeal, and as a result of such collections will receive, with the increases granted in this proceeding, a fair return for the business space in its building. Although some of the facts considered are not disclosed by the record, they may be considered for the purpose of sustaining the order appealed from and, considered for that purpose, require affirmance.