
    De Jesus, Respondent, v. Greenland Holding Corp., Appellant.
    Supreme Court, Appellate Term, First Department,
    May 28, 1953.
    
      
      Benjamin Cooper for appellant.
    
      Siegel & Gray (Irwin Gray of counsel), for respondent.
   Per Curiam.

The evidence establishes that the premises which have been occupied by the plaintiff during the period complained of and for which it is claimed defendant charged plaintiff a rent in excess of the fixed maximum rent are not the same and identical premises covered by the maximum rent. The uncontradicted evidence is that substantial alterations were made which improved the apartment with a kitchenette and a combination shower and toilette. By reason of the improvements the rent previously fixed ceased to be applicable. In the absence of proof that the rent charged by defendant for the apartment is for the same accommodations as previously existed, plaintiff has no cause of action to recover on the theory that he was charged a rent in excess of the maximum rent fixed by the Federal Office of Price Administration and the Temporary State Housing Bent Commission. (Weiderman v. Recklinghausen, 278 App. Div. 289, affd. 303 N. Y. 633.)

The judgment should be reversed, with $30 costs, and complaint dismissed, with costs.

Hammer and Eder, JJ., concur; Hofstadter, J., dissents.

Judgment reversed, etc.  