
    William Logan, Jr., Landlord, Respondent, v. Harold T. Sherman, Tenant, Appellant.
    Supreme Court, Appellate Term, First Department,
    March 20, 1947.
    
      
      Sidney S. Levine for appellant.
    
      Robert McLeod Jackson and Robert M. Donohue for respondent.
   Per Curiam.

Memorandum Subdivision (e) of section 2 of the Commercial Bent Law (L. 1945, ch. 3, as amd. by L. 1946, ch. 272) does not require that the agreement which may be made by the parties fixing an emergency rent at the reasonable rent as of March 1, 1943, plus 15%, be in writing. In this respect it is different from the provisions for a written agreement in section 4 of the statute. When the parties enter into a written agreement of lease which states it ‘ ‘ contains the entire agreement between the parties ”, it is reasonable to expect that a separate prior agreement fixing such rent would also be in writing. Under such circumstances, evidence of an asserted oral agreement must be clear and convincing. We think the finding here of such an oral agreement for the landlord was against the weight of the evidence and also that the proof was insufficient to show that such rent was fixed “ upon the basis of the rent charged on such date for the most nearly comparable commercial' space in the same building or other rental area, or other satisfactory evidence ”, as also required by subdivision (e) of section 2.

The final order and judgment should be reversed and a new trial ordered, with $30 costs to appellant to abide the event.

Hammer, Shientag and Edee, JJ., concur.

Order and judgment reversed, etc.  