
    J. Albert Foisy, Appellant, v. Fred W. Peavey et al., Doing Business as Peavey Furnished Rooms and Apartments, Respondents.
    Supreme Court, Appellate Term, First Department,
    March 7, 1946.
    
      
      Alexander Michael Fox for appellant.
    
      Raphael V. Grottola for respondents.
   Memorandum Per Curiam.

In the absence of evidence by a rooming house proprietor that he was renting the same number of rooms or units on a monthly basis as> of the maximum rent date, the same term of occupancy for a unit must be continued as existed on that date. (Rent Regulation for Hotels and Rooming Houses in the New York City Defense-Rental Area, § 2, subd. [b], par. [2]; 8 Federal Register 13911, as amd.) In determining the applicable rate per person, a child must be considered as a person. The overcharge is the difference between the $18 per week and $68 per month for the period of occupancy, namely, $44. Attorney’s fees will only be allowed for the appeal. None were pleaded below or proved on the trial.

The judgment should be reversed, with $30 costs, and judgment directed for plaintiff for $132, together with $30, attorney’s fees allowed on the appeal.

The appeal from the orders should be dismissed.

Hammer, Sheintag and Hecht, JJ., concur.

Judgment reversed, etc.  