
    Harry Garramone et al., Respondents, v. Robert Speirs, Appellant, et al., Defendants.
    Supreme Court, Appellate Term, Second Department,
    June 13, 1957.
    
      
      Carl H. Heiberg for appellant.
    
      J. Harry Pincus for respondents.
   Per Curiam,

Since the structure here involved was used as a three-family dwelling at the inception of the subject tenancy, it was error to hold, as the decision of the trial court implies, that the space in question was decontrolled by the subsequent removal of another tenant. The maximum rent for the second floor space, as determined by the Temporary State Housing Rent Commission, is controlling herein and measures the liability of the tenant if his occupancy is limited to such space. However, if the rental agreement also includes the third floor, the landlord would be entitled to the maximum rent for the second floor, as aforesaid, plus the legal maximum rent for such additional space.

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

Pette, Hart and Di Giovanna, JJ., concur.

Final order reversed, etc.  