(dissenting). In this article 78 proceeding brought by petitioner representing tenants of an apartment house to review and annul a determination of the State Eent Administrator granting the landlord’s protest and revoking orders of the local rent administrator who had previously granted all the tenants a reduction in rents because of alleged reduction in services, the landlord appeals from an order of Special Term remitting the matter to the State Eent Administrator at the Administrator’s request for further consideration and determination on “ new evidence ” submitted.
*398Seventeen, of the tenants gave a voluntary increase in rent of 15%; but eighteen others have never consented to any increase and have been paying rent frozen for the landlord at the nadir of the depression in March, 1943; the landlord is not seeking any increase; these tenants were and are now seeking a decrease in such rent.
After a careful review of all the evidence in the record and after considering the matter de novo, the State Rent Administrator in a comprehensive order and opinion (covering fifteen pages of the printed record herein) revoked on May 14, 1951, the orders of the local rent administrator and established the rents in the same amounts as they were prior to the orders of reduction. In such final order and opinion, the State Rent Administrator pointed out that the additional doorman furnished by the landlord pursuant to the so-called settlement in 1948 served only to the end of December, 1948; but the tenants herein did not apply for relief until two and a half years later when the proceeding before the State Administrator was begun in May, 1950.
The tenants brought this proceeding to review under article 78 the State Rent Administrator’s order by a petition verified June 7, 1951. After answer filed by the landlord, an attorney in the State Rent Commission filed an affidavit requesting the court to remit the case to the State Rent Commission for further consideration. He stated that there was a serious factual issue as to an agreement between the landlord and the tenants in March, 1948. The tenants contend that the landlord obligated itself to furnish sixteen-hour lobby service; the landlord claimed that such agreement was conditioned on a voluntary increase of 15% of the rents on the part of the eighteen tenants who had not agreed to pay any increase. The attorney’s affidavit further stated that after a conference on June 18, 1951, “ further written evidence ” was submitted to the commission “ of great probative value ” in determining the issues. The affidavit, however, fails to give any indication of what such evidence is.
Under the statute in a proper case, the court in its discretion has power “ to remit the proceeding to the Commission ” (State Residential Rent Law, § 9, subd. 1); but in our opinion this record does not disclose any rational, legal basis for such remission. Very recently this court in Matter of Cupo v. McGoldrick (278 App. Div. 108) held that the State Rent Administrator during an article 78 proceeding should not, on his own motion, rescind his determination then under review by the *399court, and remand the matter to himself for further hearing. In this case the Administrator does not attempt, sua sponte, to revoke his determination, but asks remission to him of the issues. However, before a court can pass intelligently upon such request on the ground of newly discovered and important evidence, the nature of that evidence should be factually revealed. After full and formal determination of all the issues by the Bent Commission and without any factual disclosure by him of additional evidence shown to be material and competent, the court should not have remitted the matter to the Administrator at his request. If administrative bodies after full consideration of all the evidence and a final determination on the merits, may have matters remitted to the administrative bureau, during review by the court without factually revealing any ground that the court can rationally consider, “ there never would be an end to administrative procedure or litigation ” (Matter of Cupo v. McGoldrick, supra, p. 112). Such action is at least akin to what we recently condemned in the Gupo case.
When the Administrator files his return and transcript, Special Term should, as the petition itself requests, consider the issues of fact and law 11 on the merits and if necessary, conduct a hearing to determine whether the Bent Administrator’s determination of May 14, 1951, should be modified, corrected or annulled.
Accordingly we dissent and vote to reverse the order appealed from and deny the request of the State Bent Administrator for remission.
Cohe and Bergae, JJ., concur with Shieetag, J.; Dore, J., dissents in opinion in which Peck, P. J., concurs.
Order affirmed, without costs. [See post, p. 906.]