I concur in the majority’s conclusion to affirm.
In my view, Special Term properly confined its reasoning to the quintessential issue: are the respondent tenants to be accorded a reasonable opportunity, and at their own expense, to have their own accountants and attorneys examine the appellant landlord’s books and records. There would then follow a further hearing by the Conciliation and Appeals Board (CAB), a coappellant, a creature of the Rent Stabilization Law.
Having affirmed the determination that the tenants of this vast apartment house complex are entitled to an opportunity to examine the data submitted to the CAB, I believe it unnecessary, at this juncture, to make findings and conclusions such as whether the tenants have a constitutional or vested property right to question the rent increases awarded, which base years are properly considered, etc. To discuss such details as which base year is applicable, I repeat, is not necessary at this time for, if the tenants’ examination reveals significant miscalculations or extrapolations, I should assume that the CAB would accordingly either deny or adjust the rent increases.
I also see no present need to consider the constitutionality of various facets of this most recent rent control legislation. My reading of 8200 Realty Corp. v Lindsay (27 NY2d 124 app dsmd 400 US 962) is that it holds there was no unlawful delegation of legislative powers to the Real Estate Industry Stabilization Association (REA) since the right of an aggrieved *144member, i.e., a landlord, for a review before the CAB establishes that the REA has not been given "judicial powers”. Surely such an intramural appeal within the confines of the CAB presupposes an independent audit or review—or, in any event, a real rather than a nominal consideration or examination—of the landlord’s presentation.
The limited nature of this appeal does not afford an appropriate occasion for an extended discourse on several other possible constitutional infirmities which may attach to the statute. I am not unmindful that apart from 8200 Realty Corp. v Lindsay (supra), in Plaza Mgt. Co. v City Rent Agency (25 NY2d 630) and Matter of Hartley Holding Corp. v Gabel (13 NY2d 306) previous rent control laws were held constitutional. At the risk of bordering on judicial presumption, I venture that the Court of Appeals might welcome an opportunity to reconsider 8200 Realty Corp. v Lindsay. In 8200 Realty Corp., Judge Burke, the sole dissenter, would have affirmed the First Department’s Per Curiam opinion (34 AD2d 79), holding the statute unconstitutional. Judge Burke also solely dissented in Plaza Mgt. Co. In Matter of Hartley Holding Corp., it was Judge Van Voorhis who dissented. It may well be that these dissenters could prove to be in the tradition of the great Justices Holmes and Brandéis, many of whose dissents ultimately became the law of the land.
I find no references in the several briefs—or for that matter in 8200 Realty Corp. v Lindsay or in Bedford Bldg. Co. v Beame (38 NY2d 729, remittitur amd 39 NY2d 744)—that Schechter Poultry Corp. v United States (295 US 495) (the famous "sick chicken” case) or Carter v Carter Coal Co. (298 US 238), which, respectively, demolished the National Industrial Recovery Act and the Bituminous Coal Code, are no longer applicable and that there are now no constitutional restraints against granting sovereign, quasi-sovereign, legislative or judicial powers to trade associations.
Of course, granting constitutionality—for, indeed, we must —I see nether conflict nor derogation of the statute’s validity in according tenants the right to a reasonable and meaningful examination and questioning of a landlord’s supporting data.
In sum, it suffices for our immediate purposes simply to hold, as did Special Term, that elementary concepts of due process, apart from basic judicial proprieties, compel allowing the tenants a fair opportunity to inquire into and question the landlord’s documentation. I decline to take judicial notice that *145an accountant—even a C.P.A.—in the service and pay of a litigant is so sacrosanct that his methodology or calculations are invulnerable. Surely an application involving some 1,828 units in some 20 buildings and in which the landlord has been granted a 6.31% increase—6% retroactive to April 27, 1975 and a .31% increase retroactive to April 27, 1976—yielding an annual increase of approximately $305,000, merits more than the cavalier treatment apparently accorded by the CAB.
I fail to see the purposes served by the majority’s specific overruling of Special Term’s holding that the tenants have vested property rights. The very rationale of the statute permitting increases in rent, of necessity, is based upon the landlord having vested property rights, to wit: the right to a fair and reasonable return on his invested capital. Concomitantly and correspondingly, and whether vested or otherwise, a tenant should be entitled to a fair hearing and with no less scrupulous adherence to fundamental precepts of due process as are accorded to person on public assistance whose benefits are sought to be terminated or lessened (cf. Goldberg v Kelly, 397 US 254).
The appellants’ quibble—a harsh, but justified characterization—is that the CAB "reviews” but does not and need not "audit”. Apart from noting that "a rose by any other name” etc., no matter the nomenclature, the conceded realty is that there has been no real inquiry by the CAB. On the contrary, it appears to assume the role of Cerberus vis-á-vis mere tenants.
A further aspect of the rather peculiar approach taken by the CAB is the manner in which the tenants were given an opportunity to protest the landlord’s financial allegations. It is patently absurd to allow tenants 10 days within which to question the figures involving this vast number of apartments and what must, unquestionably, be a rather complex bookkeeping arrangement.
I disagree only with that portion of Special Term’s opinion which commends that this court promulgate appropriate rules and regulations. If the CAB is, indeed, a real administrative agency, it must promulgate such rules at its own initiative. Apparently it has yet to do so.
Citing Wasservogel v Meyerowitz (300 NY 125), appellants repeatedly stress that the tenants have neither constitutional nor "vested property rights” in a controlled apartment. The phrase must be considered in the context of that opinion. *146Wasservogel involved solely a question of retroactivity of a rent increase. The manner in which it ultimately came to the Court of Appeals is not without interest, for it was initiated as a summary proceeding for the tenants’ eviction for nonpayment of rent. That belabored expression is dictum, for the Court of Appeals expressly held that it really had no jurisdiction of the matter by virtue of the supremacy clause of the United States Constitution. Decided in 1949, the whole area of rent control then was one of Federal cognizance; not that of any State. In explaining why it considered the substance of the appeal, the court in Wasservogel stated (p 133); "However, so that or views now may be available as to all the questions variously answered in the opinion below, we are expressing those views, even though we conclude, as we do, that the Municipal Court, when shown the Federal Expediter’s determination, was bound to accept and act upon it, and could not review or overrule it for supposed invalidity. In Matter of Schmoll, Inc. v Federal Reserve Bank (286 N. Y. 503, 509) we said that no State Court may 'control the manner in which a federal agency performs or attempts to perform its functions and duties under the Tariff Act or other federal statute where the Federal government has exclusive jurisdiction.’ The attempt by the State courts, in the cases before us, to hold invalid this Federal administrative order, is nothing less than an assertion of control of the manner in which the Federal rent office performed the function assigned to it by Congress.”
Prior thereto, Wasservogel, in holding that there was no "property right or estate in the premises”, stated (p 132): "A statutory tenant holds over not because he has any property right or estate in the premises, but because emergency laws forbid his eviction. Fixation of the maximum amount to be paid by him as rent during such emergency occupation is not a judicial but a legislative act, the actual computation thereof being validly delegated by Congress to an administrative agency (Bowles v Willingham, 321 U. S. 503, 512) * * * It may be that, as to a landlord forced to keep a tenant, due process requires that he have a court review of any claim he may make that a reduction of rent, or refusal to allow an increase, is confiscatory (see Yakus v United States, 321 U. S. 414, 431 et seq.; Bowles v Willingham supra, pp. 519-521).”
Note should be given to that function being "validly delegated” for it presupposes a valid delegation to a true administrative agency. It is well to recall that Wasservogel was *147decided in 1949, and all that was involved was the retroactivity and not the validity of the increase per se. Thus, it is clear, that the denial of any "property right”, in the context of Wasservogel, is a dictum. Subsequently, in Matter of Clason Mgt. Co. v Altman (34 NY2d 643), there was, inferentially, an attenuation of the dictum for the issue there involved the assignability of a ground lease by a statutory tenant. In remanding to the rent commissioner for a hearing so that the facts could be developed surrounding the month-to-month oral agreement, there was an implicit holding that a tenant had some property rights, for assignability of a lease is a necessary attribute of a leasehold estate.
The statute provides for virtual self-regulation by the industry, and without any real intervention or supervision by an effective, functioning and adequately staffed independent governmental agency. Indeed, and despite the tripartite facade of the CAB, the industry appears to be acting as both Judge and jury. One recalls the venerable maxim of Pascal: "No one should be Judge in his own cause.” Phrased less elegantly, in the vernacular, it is akin to having the fox guard the hen-house.
Hopkins, J. P., and Suozzi, J., concur with Shapiro, J.; Hawkins, J., concurs in the result, with an opinion.
Judgment of the Supreme Court, Queens County, dated December 14, 1976, affirmed, without costs or disbursements, and with a direction that the escrow agreement with regard to rent increases be continued as to future rents pending the final determination of the issues in this proceeding.