Opinion
June 1, 1948.
Present — Lewis, P.J., Carswell, Nolan, Sneed and Wenzel, JJ.
Appellants, constituting the Temporary City Housing Rent Commission of the City of New York, appeal from an order directing them, on the petition of a landlord, to issue a certificate permitting the eviction of a tenant. Order modified on the law and the facts by striking out the second ordering paragraph thereof and by striking from the first ordering paragraph all matter following the word "granted", and by adding after said word "granted" the following: "to the extent that the determination of the Temporary City Housing Rent Commission of the City of New York, dated December 2, 1947, denying the application of the petitioner for a certificate permitting the eviction of the tenant, Sam Reich, from premises known as 1849 — 77th Street, Brooklyn, New York, is annulled, and the matter is remitted to the said Commission for hearing and determination, upon which hearing evidence concerning the claimed physical incapacity of the petitioner's husband may be adduced, together with any other evidence on other relevant issues." As so modified, the order is unanimously affirmed, without costs. Upon the authority of Matter of Wallach v. Ross ( 273 App. Div. 102 1) and Matter of Olsen v. Ross ( 273 App. Div. 1020), the order under review may not be affirmed. The appellants, in their brief, have confined the appeal to seeking the foregoing modification.