270 A.D. 568 | N.Y. App. Div. | 1946
In this proceeding brought by a landlord to fix rents, in excess of emergency rents, pursuant to section 4 of chapter 314 of the Laws of 1945 (Business Rent Law of 1945), the questions of fact arising on the joinder of issue were
On consideration of the record, since neither the official referee, nor the learned justice at Special Term, made any decision or filed any memorandum setting forth the facts upon which his determination was made, we are unable to discover the basis upon which such determinations rest. In a proceeding pursuant to section 4 of this statute, the court is required to determine what constitutes a reasonable rent for the commercial space affected, and the amount is to be arrived at by a mathematical computation, in accordance with a formula set forth in the law. However, before the formula may be applied, the court must determine the fair value of the property, the amount of the mortgage or mortgages thereon, the cost of maintenance and operation, and the amount of the real estate taxes. Only after these findings have been made by the court may it be determined whether the emergency rents are fair and reasonable, or that an increased rental is warranted. In such a proceeding the court should render a decision, indicating the. findings upon which its determination is made, so that such determination may be intelligently reviewed upon appeal. (Matter of Frankel (Matters’ Oakhide Boxes], 269 App. Div. 531.) Ordinarily, failure to render such a decision would necessitate reversal, and remission to the Special Term for further pro
As to the tenants Veru, Niki teas and Mavrukis, the landlord is entitled, if he shall so elect, to a modification of the order appealed from so as to provide for the payment of rent by the tenant Veru in the sum of $2,645, plus 9% of the gross business income of the tenant in excess of $25,000; for the payment by the tenant Nikiteas of rent in the sum of $1,150, plus 10% of the gross business income of said tenant in excess of $10,000; and for the payment by tenants Louis and James Mavrukis of rent in the sum of $1,495, plus 9% of the gross business income of said tenant in excess of $16,000, provided, however, that in none of these cases shall the tenant be compelled to pay any rent in excess of the rent provided to be paid by the leases in force at the time of the commencement of this proceeding. The order appealed from will be modified accordingly, if the landlord shall so elect and shall so indicate on the settlement of the order to be presented. In the event the landlord shall not so elect, the order insofar as appealed from should be unanimously affirmed.
Lewis, P. J., Hagarty, Carswell, Aldrich and Nolan, JJ., concur.
On appeal by respondent-appellant, the order is modified on the law and the facts by reducing the annual rental therein fixed to be paid by Fred Christie from $1,650 to $1,300. As thus modified the order, insofar as appealed from, is unanimously affirmed.
On appeal by the appellant-respondent, the order, upon his election at the- settlement of the order to be entered hereon, will be modified on the law and the facts in accordance with opinion herein; and in the event the landlord shall not exercise his right of election, the order, insofar as appealed from is unanimously affirmed.
One bill of costs is awarded to respondents and one bill of costs to respondent-appellant, payable by appellant-respondent. Settle order on notice, within ten days from the date of his decision.