
    In the Matter of Leonard Capone, Appellant, against Robert C. Weaver, as State Rent Administrator, Respondent, and John Miller, Intervenor-Respondent.
   In a proceeding to review a determination of the State Rent Administrator which denied a protest to an order of a Local Rent Administrator fixing the maximum rent of a housing accommodation, the appeal is from an order denying the petition and dismissing the proceeding. Appellant, the co-owner of a building, applied for a certificate to evict respondent Miller, the tenant, from a second-floor apartment. On January 10, 1955 the application for the certificate was granted on condition that appellant offer to respondent Miller a two-year lease of the third-floor apartment then occupied by appellant. The term commenced, under the ensuing lease, in fulfillment of the condition, on April 14, 1955, at which time appellant quit possession of the third-floor apartment. Appellant had been continuously in occupancy of that apartment, without original recourse to a certificate of eviction, from March 1, 1954. On April 23, 1957 the Local Rent Administrator pursuant to section 36 of the State Rent and Eviction Regulations determined that the third-floor apartment, despite termination of the two-year lease, was subject to rent control during the occupancy of respondent Miller. Appellant’s protest of the ruling was denied by the State Rent Administrator. Order reversed, without costs, determination annulled, and matter remitted to the State Rent Administrator for further proceedings as indicated herein. Inasmuch as the third-floor apartment had been continuously occupied by appellant for a period of one year prior to April 14, 1955, the date of renting, it was no longer subject to control (State Residential Rent Law, § 2, subd. 2, par. [h]; L. 1946, ch. 274, as amd.) when the exchange of apartments was effectuated. Nolan, P. J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.  