
    In the Matter of Achille Cozzi et al., Respondents, against Joseph D. McGoldrick, as State Rent Administrator, Appellant.
   Per Curiam.

In our opinion, the Rent Administrator acted within his authority in the practical administrative interpretation of the scheduled rental income” under paragraph b of subdivision 5 of section 33 of the State Rent and Eviction Regulations.

The issues regarding the painting expense were fully tried and on the basis of the record and the credibility of the witnesses, the Rent Administrator determined such issues adversely to the landlord. There is no need to relitigate such issues.

The order appealed from remanding issues to the State Rent Administrator should be reversed and the administrator’s determination reinstated, with costs to appellant.

Cohn, J. (dissenting). The trial court properly recommitted to the Temporary State Housing Rent Commission for appropriate disposition the calculation of the landlords’ gross income. The commission should not have disregarded the rent actually collected during the test year of 1951 from apartment 1-C. The actual rent received was pursuant to a written lease with said tenant for a two-year period, which lease was duly filed with the commission wherein the tenant granted the landlord a voluntary increase of 15%. There is not the slightest proof of fraud or impropriety in connection with the execution of this lease. The trial court correctly decided that the lawful rent actually collected thereunder is the sum which should be employed in computing gross income for rent adjustment purposes.

As to the second item, the disallowance of painting expenses incurred in the year 1951 by the landlord in the sum of $718 merely because the landlord claimed that the work had been paid for in cash, the court quite properly referred this back to the Rent Commission for the purpose of having proof adduced to determine whether the work claimed by the landlord was actually done, and what the reasonable cost of that work might be.

Accordingly, I dissent and vote to affirm.

Peck, P. J., Dore, Breitel and Bastow, JJ., concur in Per Curiam opinion; Cohn, J., dissents and votes to affirm in opinion.

Order reversed, with $20 costs and disbursements to the appellant, and the determination of the State Rent Administrator reinstated.  