
    In the Matter of Rosdniw Co., Inc., Petitioner, against Temporary State Housing Rent Commission, Respondent.
    Supreme Court, Special Term, New York County,
    March 22, 1954.
    
      Leon Liner for petitioner.
    
      Robert H. Schaffer and Emory Gardiner for respondent.
   Dineen, J.

Pursuant to article 78 petitioner seeks a review of the determination of the Temporary State Housing Rent Commission and thereafter an order to set aside such determination. The Administrator denied an application for an increase in rent which was sought by reason of an alleged capital improvement for the maintenance and operation of the hotel. It appears that the petitioner was required to convert the electrical current from direct to alternating. The change having been effected the petitioner decided on installing new refrigerators in lieu of obtaining alternating adapters for the old units as being economically wiser even though more expensive. This was a .deviation from the original plan made known to the tenants. Though the tenants accepted the new refrigerators they did not consent in writing to this arrangement. On a prior application for an increase in rent because of the installation of the new refrigerators the application was denied. The respondent asserts such determination is res judicata and bars the present application. Assuming that it does not, as contended by the petitioner, it appears that the installation of the new refrigerators was not necessary to the operation and maintenance of the hotel. The landlord being obligated to furnish only serviceable refrigerators had the choice of making such replacements which need not be necessarily new. That the landlord saw fit to install new units is not binding upon the tenants in the absence of the required written consents of the tenants. After reviewing the entire record it must be concluded that the determination is amply sustained by the facts and applicable law and was not arbitrary or capricious. Petition dismissed.  