Allen Swift et al., Appellants,
v.
130 West 57th Corporation, Respondent.
Court of Appeals of the State of New York.
Argued January 7, 1970. Decided January 22, 1970.Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur.
*716MEMORANDUM.
The order of the Appellate Division should be reversed and the case remitted to Supreme Court, New York County, for a new trial on the first cause of action, with costs to abide the event. Although it is always salutary to have the prior benefit of the regulatory determination of the City Rent Agency, the trial court was empowered and, therefore, was required to determine whether the entire apartment was subject to rent control. If, in fact, the subject premises (13D-14D) had been theretofore divided so that on February 1, 1947 apartment 14D was independently devoted to a nonhousing use by a separate tenant, there need be no additional showing of substantial structural changes in the premises (Administrative Code of City of New York, § Y51-3.0, subd. e, par. 2, cl. [i], subcl. [1]). The record is confused and inadequate on the issue of use on February 1, 1947, a critical date. It is evident that competent and probative evidence to establish the use was not presented, but instead there was reliance on various papers for which incomplete foundations were laid and on the less than precise testimony of the corporate officer.
Order reversed and the case remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein, with costs to abide the event.