
    In the Matter of Oscar Levine, Appellant, against Charles Abrams, as State Rent Administrator, Respondent.
   Proceeding to review a determination of the State Rent Administrator, which denied the landlord’s protest of a determination of the local rent administrator in Brooklyn fixing the maximum rent of the subject apartment. The landlord appeals from an order denying his petition and dismissing the proceeding. Order reversed, without costs, and matter remitted to respondent for fixation of maximum rent consistent with the views hereinafter set forth. Respondent’s action was improper, arbitrary and capricious. For fifteen years prior to February, 1954, the apartment in question, the only five-room unit in the building, had been occupied by a superintendent, and no emergency rent had been fixed therefor. In that month, appellant leased said apartment for a term of two years and one-half month at a rental of $85 a month, and filed a report on statutory decontrol with the Temporary State Housing Rent Commission. The local administrator rejected said report on the ground that former occupancy by a superintendent is not a valid reason for decontrol and fixed the maximum monthly rent on the basis of comparable rentals, using as guides the four-room apartments in the building. Taking as a base a rent of $45 for four rooms, there was.added $9 (20% of $45) for the fifth room, together with $8.10 (15% of $54) and $9.31 (15% of $62.10) pursuant to the State Residential Rent Law (L. 1946, ch. 274, as amd., § 4, subd. 3-a; subd. 4, par. [a], cl. [4]). The resultant total of $71.41 was rounded out to $72, from which was deducted $2 because the tenant had furnished a cooking stove, and the emergency rent was fixed at $70. For reasons that follow, the amount fixed is improper. It appears that the maximum rents, on the freeze date, of the eight four-room apartments in the building were $50 for five, $48 for two, and $45 for only one. Concerning the $45 apartment, the landlord claimed that the tenant at the time was a widow and could not pay more, and, in fact, by supplemental registration, the maximum rent thereof was fixed at $50 on May 29, 1944. It is further alleged that the five-room apartment herein is in a choice part of the building. Accordingly, when considering the matter upon the remission, respondent should take these factors into account in determining the proper amount to be used as a basic rental for four rooms and should also consider appellant’s claim that he reimbursed the tenant for the stove. In addition, an obvious miscalculation was made, which should not be repeated, for at $45 for four rooms, the rental would be $11.25 a room (25% of $45), not $9 (20% of $45) as allowed. Nolan, P. J., Wenzel, Schmidt, Murphy and Ughetta, JJ., concur.  