
    In the Matter of Harborne Realty Corp., Appellant. Samuel Gottlieb et al., Respondents.
   Per Curiam.

In this proceeding the landlord, who is the appellant, sought to secure an increase in rent from respondents, who are tenants of stores in the landlord’s premises. The building involved is fourteen stories high and contains six stores and seventy apartments. In' the absence of other proof the formula set forth in the statute as to commercial property fixing a net annual return of 6% on the fair value of the property plus 2% on the principal of the mortgage thereon should have been employed (and not 4% and 1%), in determining whether the landlord was entitled to an increase in store rentals (Matter of Court Square Bldg. v. City of New York, 298 N. Y. 380, 386; Schack v. Handel, 271 App. Div. 1). However, we find no error in the result arrived at, as expenses of $21,000 claimed by the landlord were not applicable to the stores in question but were properly chargeable only to the apartments in the upper fourteen stories of the building. Increasing the return to 6% and 2% would increase the rental value by only $15,360. Accordingly, from the figures submitted by the landlord, there would be no basis for an increase in rentals as to respondents. Moreover, no attempt was made by the landlord, who has the burden of proof, to show what was the rental value of the stores as against that of the apartments.

The order appealed from should accordingly be affirmed, with costs.

Peek, P. J., Dore, Cohn, Van Voorhis and Shientag, JJ., concur.

Order unanimously affirmed, with $20 costs and disbursements.  