Appeal from an order of the Supreme Court at Special Term, entered June 7, 1950, in New York County, which, among other things, granted a motion by respondents for reargument and, upon reargument, (1) granted a motion by said respondents, as landlords, to amend, retroactive to the date of service of the original petition, in certain respects, their petition for the fixing of the fair *1032rental value of premises occupied by appellants as tenants, and (2) allowed the cause to remain at the head of the calendar of Special- Term, Part III.
Per Curiam.This proceeding was begun in August, 1949, for fixation of rents pursuant to the “ alternative ” provisions of section 4 of the Business Rent Law (L. 1945, eh. 314, as amd. by L. 1949, eh. 535). Thereafter the statute was amended to limit increases in an “ alternative ” proceeding to 15% over existing rents (L. 1950, eh. 326, eff. March 31, 1950). The landlords-petitioners applied for leave to amend their petition so as to bring the proceeding under subdivision 1 of section 4 of the statute (so numbered and amd. by L. 1950, eh. 326) fixing rents on the basis of a fair return. Such amendment does not create or allege a new cause of action (see Harriss v. Tams, 258 N. Y. 229). Accordingly, we think that the order appealed from was proper in permitting amendment of the petition retroactive to the date of commencement of the proceeding (see Matter of City Bank Farmers Trust Co. [Harvey’s Garages], 277 App. Div. 982; see, also, B. F. Leasing Corp. v. Werthman, 277 App. Div. 981). The ease at bar is distinguishable from the situation in Matter of Georg Jensen, Inc. (Hammer Galleries) (277 App. Div. 977) involving a variable lease, where this court affirmed an order dismissing the petition, but without prejudice to the commencement of a new proceeding or an application to Special Term for leave to amend the petition.
We think, however, that the service of a new pleading in the instant proceeding is required in the interests of orderly procedure rather than incorporation of the amended allegations in the order itself.
The order appealed from should be modified in accordance with the foregoing and, as so modified, affirmed, with $20 costs and disbursements to the respondents. Let the amended petition be served within ten days after service of order to-be entered hereon.
Peek, P. J., Glennon, Callahan and Van Voorhis, JJ., concur; Sheintag, J., dissents as follows: I dissent in part on the ground that the amendment of the petition should not be made retroactive to the date of the commencement of the proceeding.
Order modified in accordance with opinion herein and, as so modified, affirmed, with $20 costs and disbursements to the respondents. Settle order on notice. [See 278 App. Div. 568.]