(dissenting). In September 1947, the landlords, pursuant to paragraph (12) of subdivision (a) of section 5 of the Federal Bent Begulations under the Housing and Bent Act of 1947 filed £ £ hardship applications ’ ’ for increases in the rents of seven buildings. At the time the applications were made, all four leases involved in these appeals were still in effect and had not expired. These leases contained so-called “ escalator clauses ” which prevented any retroactive increases in rent during the terms of the leases. At the time the applications were made, the Federal Office of Housing Expediter lacked power to make a retroactive order (Markbreiter v. Woods, 163 F. 2d 993).
*390While this proceeding was pending and on Jannary 30, 1948, the rules of the Federal authority were amended so as to give power to make all orders retroactive to the date of application. In these cases the power was used and all orders were made retroactive. The Meyerowitz and Becker leases expired, respectively, October 31 and November 30, 1947. The Dornbush and Silverman leases expired March 31, 1948*
We are of the opinion that we may not question the propriety of the exercise of this power by the Federal Office of Housing Expediter. If there was any remedy for the tenant it should have been pursued in the Federal court. The orders as issued should be recognized by this court as valid.
The Federal authority, however, was not construing the‘ ‘ escalator clauses ” in these leases and, since the landlord specifically agreed not to make rent increases retroactive during the running of the leases, the final orders and judgments in these cases should not give retroactive judgments relating, to any period prior to the respective expiration dates of the leases. Accordingly, the orders in the Meyerowitz and Becker leases should be retroactive from November 1, 1947 and December 1, 1947, respectively, and in the Dornbush and Silverman cases the increases should date from April 1, 1948. The orders should be modified accordingly and as so modified affirmed.
Dore, Cohn, and Van Yoorhis, JJ., concur in Per Curiam opinion; Shientag, J., dissents in a dissenting opinion in which Peck, P. J., concurs.
Orders affirmed, with costs. Settle orders on notice.