(dissenting in
part).
I agree that there was error as to the tenants Pike and Conti, but for reasons which would require reversal as to the other tenants here and affirmance of Judge Ford’s decision in Woods v. Claving Realty Corp., D.C.S.D.N.Y., 77 F.Supp. 533, reversed herewith. It seems to me that the Administrator, by aptly inclusive words in his Regulations, has made -provision for a situation which, had he not done so, would represent a sadly unfortunate omission from the general scheme of rent control. For it is quite clear that in this rent area on the crucial “freeze” date real estate *361brokers performed, and were paid by ihe landlords, for this service, the charge for which is now being passed on to the tenants. It was a service going beyond the mere finding of a person who wished to rent living quarters; broadly speaking it was the screening, by dependable brokers, of the desirable from the undesirable applicants. How important and necessary the landlords thought this service was is shown rather convincingly in the two instances here singled out for special and, I fear, discriminatory treatment, those of Pike and Conti. For these were two applicants not discovered by brokers, hut they, like the rest, were directed to submit to the Same screening process. The suggestion that brokers’ services had no longer become necessary to the landlords because of the shortage of rents and consequent demand therefor is therefore belied by the record itself. It is also belied by the circumstance — to be noticed by us judicially equally with our notice of the shortage itself — that that shortage had become acute long before the freeze date in 1943, when the landlords were paying for the service.
Hence we have here a service charge, formerly paid by the landlords, but after the establishing of maximum rents passed on to the tenants, as, thus, a dear and obvious increase in the burdens of the latter, contrary to the intent of the rent control program and to the mandate of the regulations as I read them.1 For they are not cast in terms of conventional definitions of “rent” and of “landlord” (if, indeed, even such definitions could be agreed upon), but contain their own controlling provisions. By these, “ ‘rent’ means the consideration, including any bonus, benefit, or gratuity, demanded or received for or in connection with the use or occupancy of housing accommodations,” and “ ‘landlord’ includes an owner * * * or other person receiving or entitled to receive rent [i. e., the thus-defined rent] for the use or occupancy of any housing accommodations.” Rent Regulation, §§ 13(a) (10), 13(a)(8), as quoted in the opinion supra. I do not see how the definitions could have more broadly included the present charges unless they had contained an explicit statement that brokers’ commissions were so included — a course naturally to be avoided in drafting where possible lest the stress of the one instance might suggest the exclusion of others.
I conclude, therefore, that the broker’s commissions here were properly the obligation of the landlord, just as Judge Ford held in Woods v. Claving Realty Corp., supra. Illustrative decisions are of course United States v. De Porceri, 2 Cir., 161 F. 2d 526, Shaker Parkway Co. v. Porter, Em, App., 157 F.2d 920, and pariicularly the case relied on by Judge Ford, Bowles v. Ruppel, 3 Cir., 157 F.2d 944. In the latter case the Court refused to be drawn into the distinctions attempted in the opinion here between the greater and the less service by the broker as defining the character of his commissions. True, there the broker was doing somewhat more for the landlord; but if the landlord is receiving some benefit, as it surely was by the screening process here, I cannot believe it sound to make a distinction between the case where the broker collects only the first month’s rent and that where he continues to collect later installments. Distinctions of serious consequence thus based upon small differences of fact are always unfortunate in a general regulatory scheme.; they put an unfortunate premium on sophistication, the know-how in dealing with the regulations, and an unfortunate burden upon those most in need who must employ every possible means in the competitive struggle to reach the landlord even to hiring the broker who appears to control the direct approach to the prize. Why, for example, should MissConti be favored over Mrs. Hutchinson, who actually discovered the vacant apartment herself, and then took that knowledge to the broker? Legally such small discriminations have no place in a regulatory plan which has for its basic yardstick the renting situation in New York as of March 1, 1943, when the landlords paid *362these charges.2 This, too, is the answer to the “extreme” cases suggested of the charge by the tenant’s lawyer for advice as to, or 'preparation of, the lease, or payments made for advertisements by apartment seekers for rent. Obviously those are not the kinds of charges which the landlords originally paid in 1943, but now are passing to the tenants; hence they, unlike the charges before us, are not covered by the basic yardstick. I would reverse for the like treatment of all the tenants.
This change in practice answers the contention (hat a decision for tile tenants here is so harsh on the brokers as perhaps to force them out of business; even assuming such extreme consequence, it is the landlords who are responsible through their attempt to change settled real estate practices in the city.
That these apartments may not have been rented until later of course does not change the result, which depends upon the meaning of the regulations; nor can a breach be overcome because of an erroneous construction of them for a period by a local rent attorney, whatever effect this might have upon the extent of the recovery.