I concur with the majority that the judgment should be reversed .and that the petitioner’s shelter allowance should be reinstated. I differ in that I do not find it necessary to reach the constitutionality of subdivision (c) of section 352.3 of the State regulations. That provision pertains only to recipients of welfare aid who are ‘1 residing in the *311home of a self-maintaining nonlegally responsible relative or friend.” The petitioner is not such a recipient and does not come within the provision.
The petitioner is unmarried and lives with her year-old infant son in a furnished room for which she pays $125 per month rent. The house is occupied by four separate families with separate accommodations. The landlord’s son is the father of the petitioner’s child. He does not live with the petitioner and the record shows her to be the sole occupant of her rented room. The landlord grandfather has no obligation to support the petitioner and he does not do so. He charges and collects the rent.
The respondents discontinued the rent allowance to the petitioner because she was unable to procure information about the landlord’s mortgage obligations.
The record is devoid of any proof that the petitioner has the mortgage information or whether she could even procure it. There is no evidence to indicate that the rent paid is unreasonable or that the petitioner does not need the shelter allowance. Additionally, there is no proof that the landlord and the petitioner are acting collusively. And the landlord has not been shown to be a responsible relative or friend. It is important to note that the petitioner, while under oath at the hearing, was never examined as to any of these facts.
It would seem to me, as it did to the hearing officer, that to require this petitioner, as a condition to receiving welfare relief payments for shelter, to procure a statement from the landlord concerning his mortgage payments is unreasonable. The best source of this information would be the public mortgage record and, if more is required, a subpoena to the landlord to produce his records and to take testimony concerning them would be in order.
This case must be decided for the appellant whether the State regulation is held constitutional or not. Accordingly, that question is immaterial to the result and we need not reach it.
Hopkins, Acting P. J., Shapiro and Brennan, JJ., concur with Benjamin, J.; Christ, J., concurs, except as to the declaration of unconstitutionality, with a separate opinion.
Judgment reversed, on the law, without costs but with disbursements, respondents’ determinations annulled, subdivision (c) of section 352.3 of the Regulations of the Department of Social Services of the State of New York declared unconstitutional and respondents directed to reinstate petitioner’s shelter allowance as of May 1, 1973.