
    New York City Housing Authority, Landlord, AppellantRespondent, v. Philmo Garage Corp., Tenant, RespondentAppellant.
    Supreme Court, Appellate Term, First Department,
    June 28, 1946.
    
      
      John J. Bennett, Corporation Counsel (Louis M. Weintraub and William A. Marks of counsel), for appellant-respondent.
    
      Isaac Anolic for respondent-appellant.
   Per Curiam.

Memorandum The letter sent by the former landlord constituted a modification of the lease, and the rent reserved or payable ” under the lease in force at the base date was thus $250 per month (Commercial Rent Law, § 2, subd. [e]; L. 1945, ch. 3, as amd. by L. 1946, ch. 272; Adams v. Riker Operating Co., 270 App. Div. 755; see Auswin Realty Corp. v. Kirschbaum, 270 App. Div. 334, 336; Personal Property Law, § 33). The emergency rent is therefore $250 plus 15%, or $287.50. Except as the Commercial Bent Law affects the situation, the landlord is entitled to the reasonable rental value of the premises. Such value will accordingly be the measure of the landlord’s recovery for the. period prior to effective date of the Commercial Bent Law. For the period subsequent to that date, $287.50 is the maximum lawful rent, and the landlord is entitled to the amount found to be the reasonable rental value only if it does not exceed $287.50; thus for such period, $287.50 or the reasonable rental value, whichever is lower, will be the amount of the landlord’s recovery.

The reasonable rental value is to be determined on the basis of evidence as to what the premises were worth in the rental market during the period in question, without restriction as to use (Goelet v. National Surety Co., 249 N. Y. 287). This presents a question of fact.

The final order and judgment should be reversed, and proceeding remitted to the court below for the determination of the reasonable rental value of the premises; final order and judgment to be awarded landlord after such determination in accordance with the foregoing memorandum.

Shientag and Hecht, JJ., concur; McLaughlin, J., dissents.

Order and judgment reversed, etc.  