
    Hotel Ten Park Avenue, Inc., Landlord, Appellant, v. Robert Tepper, Tenant, Respondent.
    Supreme Court, Appellate Term, First Department,
    November 3, 1955.
    
      
      Sigmund Moses and Hyman W. Sobell for appellant.
    
      Morris J. Fellner and Theodore Daniels for respondent.
   Per Curiam.

The lease under which tenant went into possession provided for the payment of a variable rent based upon the volume of the tenant’s business and, in addition, for the payment of a fixed, basic or minimum rent, and was subject to all of the provisions of. the Business Bent Law (L. 1945, ch. 314, as amd.). The fact that the lease provided that the annual rent for the first three years of the term was $5,000 and $6,000 for the last two years, did not make it a graduated lease within the statutory concept of a graduated lease (Matter of 500 Fifth Ave. [Wise Shoe Co.], 274 App. Div. 241, affd. 300 N. Y. 491).

The emergency rent is the annual rent paid on June 1, 1944, that is, $5,000, plus 15% of said amount, making a total of $5,750, not, as landlord claims, 15% of $6,000, the amount payable at the time the lease expired. An additional increase of 15% is allowed landlord by reason of the amendment to section 2 of the Business Bent Law (L. 1954, ch. 447). This amounts to $6,612.50 per annum.

The landlord having claimed an erroneous amount in the petition, the final order should be affirmed, without costs, and without prejudice to a new proceeding to collect the correct amount.

The final order should be affirmed, without costs, without prejudice to a new proceeding.

Eder, Schreiber and Hecht, JJ., concur.

Final order affirmed, etc.  