
    In the Matter of Bayview Hotel, Inc., Appellant, against Robert C. Weaver, as State Rent Administrator, Respondent, and Margaret Davis, 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 holding that housing accommodations were subject to rent control and fixing the maximum rents, the appeal is (1) from an order entered October 31, 1958 dismissing the proceeding, and (2) from an order entered December 10, 1958 which on reargument adhered to the original decision. Order entered December 10, 1958- modified by strikiing therefrom everything following the words “such re-argument" and by substituting therefor the words “the petition is granted, and the determination of the State Rent Administrator annulled.” As so modified, order entered December 10, 1958 unanimously affirmed, with costs to appellant, and matter remitted to the State Rent Administrator to conduct a hearing and take such proof as may be adduced as to whether the subject premises had been decontrolled. In our opinion, there was ample evidence to prove that the premises were used as a hotel on March 1, 1950. The State Residential Rent Law (§ 14, subd. 1; § 2, subd. 2, par. [b]; L. 1946, eh. 274, as amd.) provides for decontrol as of March 1, 1950 of premises commonly regarded as a hotel and having the usual facilities thereof. Insofar as subdivision 7 of section 3 of the State Rent and Eviction Regulations, as amended June 20, 1955, conditions decontrol upon continuance of hotel use after March 1, 1950, it is invalid because it is inconsistent with the foregoing provisions of law (Matter of Hutchins v. McGoldrick, 282 App. Div. 945, 946, affd. 307 N. Y. 78, 87). There has never been a considered administrative determination of the issue. Upon a prior remission pursuant to an order of Special Term entered September 4, 1958, a pertinent affidavit of one Trumrn was disregarded. Appeal from order entered October 31, 1958 dismissed, without costs. (Graffeo v. Graffeo, 7 A D 2d 741.) Wenzel, Acting P. J., Murphy, Hallinan and Kleinfeld, JJ., concur; Beldock, J., not voting.  