The Rent Administrator has decided that the premises rented by the tenant are not “ under-occupied ”, under the relevant provisions of the State Residential Rent Law and the implementing State Rent and Eviction Regulations. As explained in the dissenting 'opinion, the housing accommodation involved here is a nine-room, so-called “luxury” apartment, containing two maids’ rooms. The family unit occupying this apartment has for many years included two maids who worked full time. One has slept in continuously, the other sporadically, whenever required by the tenant. During one period the last-mentioned maid slept in continuously for 9 or 10 months, while her employer was in Europe. More significantly, however, one room is assigned to her exclusively — to store and change her clothes, rest, do her personal ironing and other chores, and to sleep in overnight when required.
If this maid is deemed an occupant of the room assigned to her, under the applicable statute and regulation, then the apartment is not under-occupied. If she is not such an occupant, the landlord is entitled to the certificate of eviction that he seeks. •
Subdivision 3 of section 5 of the statute delegates to the Commission authority to ‘‘ adopt * # * such rules, regulations or orders as it may deem necessary or proper for the control of evictions” (State Residential Rent Law; L. 1946, ch. 274, as amd. by L. 1951, ch. 443). Section 57 of the State Rent and Eviction Regulations, insofar as pertinent, provides: *175“ An apartment may be deemed under-occupied when there is less than one occupant for each room, exclusive of bathrooms, kitchen, and three additional rooms.” The regulation does not define who constitutes an occupant, other than specifically to exclude from its meaning “ [r] corners or boarders who are not members of the tenant’s family ”.
This reluctance to define occupants, or to list categories of nonoccupants other than roomers or lodgers, indicates a design to reserve a wide range of discretion in the Rent Administrator. The wording of the regulation would appear to encourage something of the nature of the very ad hoc determination deplored in the dissenting opinion. And understandably so, because amidst the competing concerns of emergency rent legislation— particularly when sought to be applied in a complex metropolitan society — the term “occupant” eludes capture as a constant for all rental situations.
The most efficient utilization of the community’s supply of housing space is apparently not the sole or controlling consideration in applying regulation 57, for a lodger is not regarded as an occupant, even though his room constitutes his sole and exclusive living quarters. On the other hand, a child off to boarding school or college for a long period of time, punctuated by rare and short visits to the parental home, is an occupant even though his room is seldom used. The parties to this proceeding concede that maids who sleep in regularly are occupants; and yet it is common knowledge that many of these maids rent or share rooms away from their place of work that they occupy during their vacations or days off. The dichotomy confronting the Administrator in executing the mandate of regulation 57 may often be the resolution of two conflicting social pressures — to release as much unoccupied space as possible in order to relieve the housing shortage, while also preserving a normal, healthy family unit.
The landlord itself has designated the room in question as a maid’s room. The room, as part of the apartment, has never been offered by the landlord for any purpose other than use by a maid. In short, the owner of this luxury apartment house has always recognized that two full-time maids are the usual complement of a family unit occupying the nine-room apartment. Certainly, when originally rented, neither landlord nor tenant contemplated any more than that the two rooms might be used exclusively by two maids. The applicable statute and regulation can hardly be strained, in the situation presented here, to invade the province of the lady of the house and require *176that both maids sleep in regularly. We cannot find that the Administrator abused his discretion in ruling as he did.
In Matter of Freymann v. Weaver (8 A D 2d 704), cited in the dissenting opinion, this court held that it could not be said that there was no reasonable basis for the Administrator’s determination. There were ample grounds in the Freymann matter for the finding that the woman who occasionally occupied the room in dispute, and who served the tenant and many others as a dance instructress, was not a member of the family unit. Applying the same norms for judicial review as we did in the Freymann matter, we likewise cannot disturb the Administrator’s determination in this case. The facts and circumstances support strongly his decision to the effect that both maids were members of the family unit.
The order at Special Term should be affirmed, on the facts and law, with costs.