
    Hamilton Holding Corp., Landlord, Respondent, v. Nathan Feldman, Tenant, Appellant, and “John Doe”, Undertenant.
    Supreme Court, Appellate Term, Second Department,
    May 29, 1946.
    
      
      Leonard J. Reich for appellant.
    
      Raphael H. Weissman and Abram Shlefstein for respondent.
   Per Curiam.

Memorandum The parties cancelled the lease which was in force on June 1, 1944. Therefore the provisions of section 13 of chapter 273 of the Laws of 1946, which amended chapter 314 of the Laws of 1945, are not applicable. The rent payable on June 1, 1944, plus 15% in the situation here was the emergency rent. The landlord failed to establish that there were sales of gasoline sufficient to require payment by the tenant of more than $75 on June 1, 1944. On this record the emergency rent was $86.25. The landlord never furnished an accurate statement as required by section 3 of chapter 314 of the Laws of 1945. The rent is not collectible while the landlord is in default. The tenant has a cause of action for any overpayment subsequent to March 28,1945, the date when chapter 314 of the Laws of 1945 took effect, or for any payment made prior thereto which was for a period subsequent to that date. (L. 1946, ch. 273, § 11.) A question of fact was presented as to the item of $400.

The final order and judgment should be unanimously reversed on the law and new trial granted, with $30 costs to tenant to abide the event.

MacCbate, McCooey and Steinbeink, JJ., concur.

Order and judgment reversed, etc. 
      
       See, also, Alpha Syndicate v. Horn, 186 Misc. 937, and footnote thereto. — [Rep.
     