
    In the Matter of John J. Dugan, Appellant, against Joseph D. McGoldrick, as State Rent Administrator, Respondent, and Mary Mangino, Intervener, Respondent.
   In a proceeding under article 78 of the Civil Practice Act to review a determination of respondent State Rent Administrator, Special Term denied the application and dismissed the petition. Order affirmed, without costs. No opinion. Adel, Wenzel and Beldoek, JJ., concur; Nolan, P. J., and MacCrate, J., dissent and vote to reverse the order and to remit the matter to respondent State Rent Administrator for further proceedings not inconsistent herewith, with the following memorandum: The determination under review was made in a proceeding brought for the purpose of determining the maximum rent of the apartment occupied by petitioner, who had been paying a rental of $48 a month since 1943. Petitioner claimed that this rent was fixed on the basis of a fraudulent registration certificate filed by the landlord in November, 1943, and that on March 1, 1943, the rent actually paid by the tenant then in occupation was $40 a month. Respondent administrator undertook to determine the rent paid by the tenant in occupation of the apartment on March 1, 1943, and denied relief to petitioner because of lack of proof as to that fact. The proof presented was based for the most part on hearsay and was insufficient to sustain a reduction of petitioner’s rent. However, it was sufficient, in our opinion, to call for some further inquiry by respondent administrator, who had ample power to make such inquiry and to determine the facts. The landlord, who has intervened in this proceeding, filed an answer to petitioner’s protest to the respondent administrator in which she carefully avoided making any statement as to the rent which she actually received on March 1, 1943, in spite of the accusations made by petitioner. Such a statement could have been required by the administrator and would have settled definitely the question presented. In our opinion, it was at least incumbent upon the administrator in the exercise of a proper discretion, under the circumstances disclosed, to require such a statement, and the determinátion under review, made without such inquiry, was arbitrary and capricious.  