Opinion
May 23, 1949.
Appeal from an order granting respondent's motion to annul appellants' revocation of a certificate for eviction of a tenant from housing accommodations and to restore the certificate to full force and effect, which order was made by an Official Referee, and also from the order of Special Term referring the matter to the Official Referee. It was the duty of the Justice at Special Term to pass upon the record made before the commission to determine whether a factual basis existed to support its decision. While the court in a proper case may take proof to supplement or clarify material matter in the record before the commission, it may not ignore that record, slight as it may be. (See suggestion to rent commission in Matter of Meyer v. Finkelstein, 275 App. Div. 837.) The reference of the proceeding to an Official Referee to hear and determine was an improvident exercise of the court's discretion. Where the record is inadequate for a proper determination by the Justice at Special Term, he may remit the proceeding to the commission to supplement its report. The orders are reversed on the law and the facts, without costs, and the matter is remitted to Special Term for further proceedings in accordance with this memorandum. Nolan, P.J., Carswell, Sneed, Wenzel and MacCrate, JJ., concur. [See post, p. 944.]