
    Amy H. Lindstedt, Appellant, v. Lydia Monds, Respondent.
    Supreme Court, Appellate Term, Second Department,
    October 26, 1962.
    
      
      Frederick M. Douglas and Tolly B. Broady for appellant. Edward Ingram for respondent.
   Per Curiam.

The final order and judgment should be unanimously modified so as to provide (1) for a recovery by the landlord of rent in the sum of $293.25; (2) for recovery by tenant of $362.25 for overcharges in rent, plus a counsel fee of $75 — a total of $437.25; and (3) for judgment for tenant in the net amount of $144, the excess of her recovery over landlord’s, plus appropriate costs in the court below; and as so modified, final order and judgment affirmed, without costs of this appeal to either party. The foregoing is without prejudice to any rights which may accrue to the landlord upon the ultimate disposition of the proceeding pending before the Bent Commission.

The evidence supports the trial court’s factual finding that the lawful maximum rent for the subject space is $97.75 per month (cf. Acevedo v. Syrian Protestant Church, 1 Misc 2d 66). In our opinion, however, there was no willfulness in the overcharge; and tenant was entitled to recover only the actual amount overcharged during the two-year period preceding the interposition of her counterclaim. During that period she paid an excess of $17.25 per month for 21 months — a total of $362.25. Tenant is also entitled to a counsel fee commensurate with the amount of overcharges recovered. In our view $75 would be adequate under the circumstances here shown.

There was no basis in law or in fact for tenant’s recovery as excess rent of the amount she allegedly spent to repair the building (Witty v. Matthews, 52 N. Y. 512; 1 New York Law of Landlord and Tenant, § 270, p. 534).

Concur — Hart, Di G-iovanna and Brown, JJ.

Final order modified, etc.  