Opinion
April 10, 1950.
Present — Nolan, P.J., Carswell, Johnston, Adel and Sneed, JJ.
Cross appeals by the owners and a tenant of an office building from an order fixing reasonable rental in a proceeding instituted pursuant to chapter 314 of the Laws of 1945, as amended. Order modified on the law and the facts by striking from the ordering paragraph "$21,000.00 yearly, payable in equal monthly installments of $1,750.00" and by substituting therefor "$23,327.16 yearly, payable in equal monthly installments". As so modified, the order is unanimously affirmed, without costs. The finding of the Official Referee of a value of $800,000 for the land and buildings is reversed. The findings of fact and conclusions of law are modified in the following respects: The fair and reasonable value of the property is found to be $700,000. Operating expenses are found to be $78,996.05. The total income to which petitioners are entitled is $130,574.57 and the rental income to which petitioners are entitled is $122,774.57; the difference constituting the profit realized on electricity of $7,800. The reasonable rent is 19% of the rental income to which petitioners are entitled. The learned Official Referee failed to give due consideration to the purchase by the petitioners of the property for $615,000; the assessed valuation of $600,000 and the application for reduction of assessment to $420,000. The foregoing application was erroneously excluded and is deemed admitted in evidence. The findings did not warrant the conclusion that $21,000 was the reasonable rental. The direction in the order that the petitioners furnish cleaning and porter service was properly made. The rental was fixed on the basis of inclusion in cost of maintenance of such service. Appellants-respondents made no effort to segregate and eliminate this item. If such service was not afforded, the tenant would, in effect, be paying for such service furnished to others and not to itself. The direction was made pursuant to a consent in the form of an assurance of appellants-respondents that they were content to do the cleaning.