Opinion
May 1, 1947.
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, DI PIRRO, J.
Stanley Gray Horan for appellant.
Nathaniel Phillips for respondent.
MEMORANDUM
The evidence establishes that from September 15, 1946, to and including September 30, 1946, the appellant was in occupancy and possession as tenant of the landlord.
The primary lease contemplated the subleasing of the entire accommodations by the tenant under the primary lease.
It was therefore incumbent upon the landlord to bring itself within the exceptions contained in section 6 of the Office of Price Administration Rent Regulation for Housing in the New York City Defense-Rental Area ( 9 Federal Register 14987). In the circumstances the landlord was required to allege and prove it came within the exceptions. There is neither allegation nor proof of jurisdictional prerequisites ( Carbonelli v. Bremer, 186 Misc. 348). Paragraph (1) of subdivision (c) of section 6 did not dispense with such necessity; the said provision is retroactive in its application and effect ( Schwartz v. Trajer Realty Corporation, 56 F. Supp. 930; Lubin v. Streg, Inc., 56 F. Supp. 146).
The final order should be reversed, with $30 costs, and petition dismissed, with costs.
SHIENTAG and EDER, JJ., concur; HAMMER, J., dissents and votes for affirmance.
Order reversed, etc.