
    Spear Box Company Incorporated, Landlord, Respondent, v. Isidore Perlmutter, Tenant, and Lepeco Products Ltd., Undertenant, Appellant.
    Supreme Court, Appellate Term, First Department,
    May 13, 1948.
    
      
      Max Bollt, Edwin McMahon Singer and S. Earl Levene for appellant.
    
      Archie F. Karman for respondent.
   Per Curiam.

In a summary proceeding for nonpayment of rent under the emergency statute the landlord is required (L. 1945, ch. 3, § 6) to plead and prove that the rent charged is not greater than the emergency rent or such greater rent therefor as may have been fixed by section 4 of the act.

In this instance while the landlord pleaded that the rent charged is not greater than the emergency rent, and that allegation was admitted by the tenant’s failure to deny it, there was no proof of the allegation.

In a summary proceeding for nonpayment of rent a subtenant is entitled to pay the rent, and thus defeat the proceeding (Peck v. Ingersoll, 7 N. Y. 528; Sokolow v. Meyer, 139 Misc. 424), and in the absence of proof of the emergency rental clearly the landlord made out no case.

The final order should be reversed, with $30 costs, and petition dismissed, with costs, without prejudice to a new proceeding.

Hammer, Hofstadter, and Hecht, JJ., concur.

Final order reversed, etc.  